The State strongly urges that we erred in holding in our original opinion that the charge given, a part of which was quoted in the original opinion, was on the weight of the evidence. The jury were told that one who deliberately uses a deadly weapon in such reckless manner as to evidence a heart regardless of social duty and fatally bent on mischief, * * * this would in law constitute malice, and that this would be shown by the firing of a pistol in the direction of where he knows a human being is standing and in such proximity to him that, if struck by such shot, serious bodily injury or death might result. In other words, that the firing of the pistol in the direction of where the accused knew a human being to be standing, and in such proximity to such human being as that if struck by such shot, serious bodily injury or death might *Page 57 result, — this would be the equivalent of deliberately using a deadly weapon in such a reckless manner as to evidence a heart regardless of social duty and fatally bent on mischief. We cannot agree to this proposition. If A shoots at a mark or target held for him by B, and by accident or bad marksmanship the bullet strikes B, this would necessarily be the firing of a pistol in the direction of where A knew a human being to be standing, and in such proximity to him as that if struck by the bullet serious bodily injury or death might result, — but this would not necessarily be a deliberate use of a deadly weapon in such a reckless manner as to evidence a heart regardless of social duty and fatally bent on mischief, and would not necessarily be malice. If A and B should be chasing fowls in the yard or lot, and A shoot at them at a time when B was near by, and the shot strike B, this would be within the comprehension of one of the expressions above used, but not necessarily within the comprehension of the other. If an officer shoot at the tires of an automobile in an effort to prevent the escape of one charged with crime, and strike the occupant of the car, this would hardly be held a deliberate use of a deadly weapon in a manner evidencing a heart regardless of social duty and fatally bent on mischief, and certainly it would be error to tell the jury affirmatively that one who had so acted must have acted upon malice. One might shoot down a street at a fleeing thief who was in possession of property just stolen, and the sole purpose of the person shooting might be to retake the property, and the effect of such firing might be to strike another person on the street; such act might be within the comprehension of one of the definitions or rules above referred to, but would not necessarily be within the other. Illustrations might be multiplied. We see no reason to change our opinion that that part of the charge discussed in said opinion was upon the weight of the evidence.
There is another expression in that part of the charge quoted in the original opinion in the definition of malice which, if not here disapproved, might in some way be regarded as having our approval. It is possible that the error of such expression has escaped us in some other case, but if so, — it need not be further so overlooked or repeated. The jury were told "The intentional doing of an unlawful act in such manner and under such circumstances as that the death of a human being may result therefrom is malice." Let us see. Art. 480 P. C. denounces as unlawful the shooting of any firearm of any kind on or across any public square, street or alley in a town or city, near the business houses of such town or city. If one in an alley *Page 58 of some town set up a box target and shoot at it with a 22 target rifle, he could be fined under said Art. 480, supra, but if in so doing, he shoot and kill a man who might have just stepped down to cross such alley, would this be a killing upon malice? Could a man in such case be convicted for murder? He unquestionably intended to do an unlawful act and was violating the terms of Art. 480, supra, and it might have been done under circumstances so that death of a human being could result therefrom.
Negligent homicide in the second degree is defined in Arts. 1238-43 P. C., and comprehends the doing of an unlawful act, which act the doer may clearly intend to do, yet in charging the jury in such case it would be entirely proper to tell them that one who did by negligence and carelessness cause the death of a human being, would be guilty of negligent homicide of the second degree, etc., and this would be true even though the facts show the wrongful act to have been intentionally done. That the "unlawful act" referred to was done intentionally would not make such homicide one upon malice. It would seem then clearly wrong to tell the jury that if one intentionally did a wrongful act in such manner and under such circumstances as that death of a human being might result, it would be malice.
We are inclined to agree with appellant's contention that our language as follows: "That no apparent intention to kill deceased appeared, but that under the circumstances there was apparent danger of killing deceased when the pistol was fired in his direction," was to some extent an invasion of the province of the jury, and same will be withdrawn from said opinion so as not to appear therein, otherwise the motion for rehearing is overruled.
Overruled.