The appeal is from a conviction for murder; the punishment assessed by a jury is imprisonment for life. The appellant urges that the evidence raised the issue of negligent homicide and that the court erred in failing to instruct the jury on the law of negligent homicide in response to his timely special request. The state asserts that the failure to give such a charge was not error because the court submitted a charge to the jury that authorized it to return a verdict of not guilty if it found that the deceased's death was the result of an accident.
And, in Harris v. State, 150 Tex.Cr.R. 38, 198 S.W.2d 264 (1946), the difference between an accidental killing and negligent homicide was explained as follows:
Another difference is that a jury finding of accidental homicide results in an acquittal, while a jury finding of negligent homicide results in the jury or the court assessing punishment within the range provided by law.
The appellant was taking care of his children while his wife was in the hospital. He had bathed the child that died and her four year old sister. On direct examination he testified:
The appellant said that he had dropped the baby on the bed on several other occasions because it seemed to stop her from crying. During the direct examination the appellant made no assertion that the baby's death resulted from an accident or from an unintentional act. On cross-examination the prosecutor asked the appellant the following questions:
The appellant timely made written requests that charges on negligent homicide and accidental death be submitted to the jury. The court submitted the specially requested charge on accidental death, but the court refused to submit the specially requested charge on negligent homicide. Although the requested charge on negligent homicide was not a correct charge, it was sufficient to call the trial court's attention to the omission in the court's
The state argues in its brief that "appellant interposed the defense of accident which was properly submitted to the jury. Having done so he was not entitled to a charge on negligent homicide." The state cites numerous authorities which it says support this proposition. It would appear that the state rather than the appellant attempted to set up a defense of accident; however, this is unimportant to the decision of the case.
The cases relied upon by the state in support of its position that it was unnecessary to give the charge on negligent homicide because the charge submitted on accident was sufficient are Simmons v. State, 145 Tex.Cr.R. 619, 170 S.W.2d 742 (1943); Taylor v. State, 145 Tex.Cr.R. 158, 166 S.W.2d 713 (1942); Combs v. State, 52 Tex.Cr.R. 613, 108 S.W. 649 (1908); Allen v. State, 141 Tex.Cr.R. 94, 146 S.W.2d 384 (1940); Babin v. State, 149 Tex.Cr.R. 339, 194 S.W.2d 563 (1946); Shelton v. State, 367 S.W.2d 867 (Tex.Cr.App.1963); Beasley v. State, 171 Tex.Cr.R. 115, 346 S.W.2d 123 (1961); Garner v. State, 24 S.W. 420 (Tex.Cr.App.1893); Becknell v. State, 47 Tex.Cr.R. 240, 82 S.W. 1039 (1904); Joy v. State, 57 Tex.Cr.R. 93, 123 S.W. 584 (1909), and Palafox v. State, supra.
When the cases cited and relied on by the state are carefully considered the evidence in none of them except Joy v. State, supra, and possibly Combs v. State, supra, raised the issue of negligent homicide. Therefore, a charge on negligent homicide was not required. The language used in some of those cases is misleading if it is interpreted to mean that a charge on accidental homicide would be sufficient and a substitute for a charge on negligent homicide in a case where the facts raise the issue of negligent homicide.
In Simmons v. State, supra, it was the defendant's contention that when he struck the deceased over the head with a pistol it accidentally fired and that he did not even know the pistol had discharged until after he had placed it behind a counter. The trial court gave a charge on accidental homicide. This court said:
In Taylor v. State, supra, the court said that the evidence did not raise the issue of negligent homicide and that the trial court did not err in refusing to submit such a charge. The defendant's defense was that his pistol accidentally discharged. The evidence did raise the issue of accidental homicide.
In Allen v. State, supra, the opinion states:
In Shelton v. State, supra, the court said:
The evidence in Beasley and Simmons did not raise the issue of negligent homicide.
In Babin v. State, supra, the court said:
In Beasley v. State, supra, the opinion reads:
The facts recited in Beasley show that the defense was accidental death and not negligent homicide. The appellant "testified that he had no intention of killing the deceased and explained the firing of the rifle by stating that he jerked back from the deceased and his hand slipped on the trigger." It was an unintentional act that resulted in the death of the deceased.
In Combs v. State, supra, it was said:
The principal authority relied upon in Combs was Garner v. State, 24 S.W. 420 (Tex.Cr.App.1893). Although the opinion states "... we think the facts show, that the evidence raised the issue of negligent homicide," the appellant's statement which was introduced gave this version of the facts: "My wife had started on ahead of me, and I was trotting along behind her, trying to catch up with her, swinging the pistol around in my hand and snapping it. It went off and struck my wife." From the facts stated in the opinion it would appear the facts did not raise the issue of negligent homicide.
In Garner v. State, supra, it was said:
In Garner the accused accidentally and unintentionally fired a pistol while twirling it on his finger.
In Joy v. State, supra, it was said:
The facts recited in the opinion in Joy show that the appellant intentionally fired a rifle at the deceased who he thought was stealing corn.
In Becknell v. State, supra, it was said:
If we keep in mind the difference between accidental death and negligent homicide as recognized in Palafox v. State, supra; Egbert v. State, supra, and Harris v. State, supra, it would appear that it would be a rare case which would raise both the defense of accidental death and negligent homicide. There is an obvious fallacy in saying that a charge on accidental death adequately protects the appellant when the facts in the case raise the issue of negligent homicide and a charge on negligent homicide is requested. In such a case if only the charge on accidental homicide is submitted to the jury, and it applies the instructions given to facts showing that an intentional act resulted in death, the jury should not acquit the accused. For example, assume that the death of a person or a baby is the result of a weapon intentionally fired or the baby intentionally dropped. The instruction on accident would be similar to that which follows:
The jury could not acquit the accused because he admitted he intentionally shot the gun or dropped the baby. Obviously the charge on accidental death is highly detrimental to the accused, and it is certainly not more favorable to him than a charge on negligent homicide would be. If the facts raise the issue of negligent homicide rather than accidental homicide a charge on negligent homicide should be given. When charges on both negligent homicide and accidental homicide are requested and there is doubt in the mind of the court as to which should be submitted the proper course is to submit both issues.
The court is required when a proper request is made to charge on every defensive issue raised by the evidence. The failure to do so is reversible error. 31 Tex.Jur.2d, Sec. 110, p. 660; Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716 (1962).
In McConnell v. State, 22 Tex.App. 354, 3 S.W. 699 (1886), the appellant was convicted for the offense of manslaughter for the killing of his young daughter. The
The facts in the case at bar raise the issue of negligent homicide. The appellant testified he intentionally dropped the baby on the bed and it bounced off striking its head. This caused the injuries which resulted in death. It was for the jury to determine under proper instructions whether an offense was committed and, if so, whether it was murder or negligent homicide. There was no evidence that the baby's death was caused by an unintentional act. The appellant's answer to the prosecutor's question that it was an accident did not raise that issue. Since the appellant requested a charge on accidental death the error in giving the charge was invited and could not be reversible error.
To the extent that they are in conflict with our opinion here the cases including Combs v. State, supra, and Joy v. State, supra, are overruled.
The judgment is reversed and the cause remanded.
Opinion approved by the Court.
MORRISON, J., concurs in the result.
DOUGLAS, Judge (dissenting).
The majority reverses this conviction because the court did not instruct the jury on negligent homicide.
Appellant gave an unusual (if not unbelievable) explanation of how the baby met her death. He testified that in order to stop the baby from crying he held her up to eye level and let her drop on the bed. He related that as he turned to get a diaper he heard what must have been her head hit the wall.
On cross-examination, he testified that her death was completely accidental. The court charged on accident. This charge was more favorable to appellant than a charge on negligent homicide. The jury would have acquitted had they believed the homicide was an accident.
I would follow Palafox v. State, 484 S.W.2d 739 (Tex.Cr.App.1972), and Shelton v. State, 367 S.W.2d 867 (Tex.Cr.App. 1963), which hold that where a charge on accident is given no charge on negligent homicide is required.
Heretofore this Court has held that a charge on a lesser included offense is not required unless the evidence raising such issue is that the accused is guilty and is guilty of only the lesser offense.
In McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), the conviction was assault with intent to commit rape. It was contended that a charge of the lesser offense of aggravated assault should have been given. The evidence necessarily had to show an aggravated assault for there to be enough evidence of assault with intent to commit rape, a greater offense. This Court held, unanimously, that no charge on the lesser offense of aggravated assault was required. The Court followed the correct rule and wrote as follows:
Does the majority opinion change this well established rule and overrule all of the above and many other cases? If so, the majority should do so specifically and not leave two contrary rules or lines of decision to the bewilderment of trial judges, attorneys and researchers.
Doesn't the majority opinion in effect require all lesser included offenses to be charged even though their omission is to the advantage of and favorable to a defendant?
If it could logically be concluded that the trial court erred in refusing to charge on the lesser offense of negligent homicide, it was in favor of appellant because the jurors would have found him not guilty instead of convicting him of that offense had they found him not guilty of murder. See the dissent of this writer in Esparza v. State, Tex.Cr.App., 520 S.W.2d 891.
No error toward appellant has been shown. The judgment should be affirmed.