Appellant was indicted for murder and upon his trial was convicted of negligent homicide, and his punishment was assessed at confinement in the county jail for a term of one year.
The testimony, briefly stated, shows that on the night of July 27, 1935, the appellant and three of his cousins attended services at the Wolf Valley Church; that after the conclusion of the services they started in a coupe to Bill Weatherman's home, a distance of several miles from said church. Appellant was doing the driving when they drove upon and over the person of Frank Davis and dragged him a distance of approximately one hundred forty or one hundred fifty feet before they stopped and backed their car off of him. They left him lying in the road and went to summon aid. They drove to Weatherman's home and from there returned to the scene of the accident and discovered that Davis was dead.
Bill of exception number one reflects the following occurrence. During the cross-examination by appellant's counsel of Stanley Smoot, one of the occupants of the automobile, he was asked whether there was any ill feeling on the part of any of them against Mr. Davis, the deceased, — to which the witness replied, "No sir." The State objected to said testimony on the ground that said witness could not answer for anyone but himself and his answer for the others was but a conclusion. The court sustained the objection and instructed the *Page 358 jury not to consider the question and answer thereto. It appears from the record that the court's ruling could not have injuriously affected the appellant's rights inasmuch as the jury found him guilty of negligent homicide which embraces two elements: first, an apparent danger of causing the death of the person killed; and second, that there was no apparent intention to kill. Therefore, motive, malice, or intent to kill passed out of the case and the error complained of became harmless. Moreover appellant testified that he and deceased had been friends and no enmity was shown on the part of appellant towards the deceased.
Appellant urged a number of objections to the court's charge and requested a number of special charges, some of which the court gave. All objections to the court's charge on murder and aggravated assault and all special requested charges relating thereto having passed out of the case, we need only consider the objections to the court's instructions on the law of negligent homicide and the special requested instructions relating thereto. Appellant complains because the court declined to submit his special requested charge number two which reads as follows:
"In this case, if you find and believe from the evidence that defendant J. W. Stover did not stop his car as quickly as it could have been stopped under the circumstances but you further find from the evidence, or have a reasonable doubt thereof, that his failure to so stop the car was due to excitement caused by running over and upon the deceased, then, in such event you will find defendant not guilty and so say by your verdict."
It is obvious from the foregoing instruction that even though appellant was guilty of negligence in the first instance in striking and killing Davis, yet if after he struck and killed him he became excited and by reason of his excitement did not stop his car as quickly as it could have been stopped, he was entitled to an acquittal. The requested charge was incorrect and the court's refusal to submit the same was not error.
Appellant next complains because the court declined to submit his special requested charge number four which was an instruction on contributory negligence. The rule of contributory negligence has never been given application in this State in negligent homicide cases. See Vasquez v. State,52 S.W.2d 1056; R. C. L., Vol. 2, p. 1212.
Appellant next complains because the court declined to give *Page 359 his special requested charge number five. Looking to the court's main charge we find that the court in his charge instructed the jury almost in the identical language contained in the appellant's said requested instruction.
Appellant also complained of the court's action in declining to give his special requested instruction numbers seven and eight. We do not believe the court committed any error in this respect because under said instruction the jury could not have found the defendant guilty of negligent homicide unless they found he intentionally failed to exercise that degree of care and caution in the operation of his automobile as an ordinary prudent person would have exercised under the circumstances. Appellant evidently intended the words intentionally and negligently to mean the same thing. Such might have confused the jury because if he ran upon him intentionally and killed him, he might be guilty of murder; whereas if he did it in a negligent manner, he would be guilty of negligent hnmicide.
All other matters complained of have been thoroughly considered by us and deemed to be without merit.
Finding no reversible error in the record, the judgment of the trial court is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.