This is an appeal from a conviction for murder, wherein punishment was assessed at ten years.
Appellant contends the trial court erred in refusing his "requested special instruction to the jury relating to the defense of accident." We agree and reverse.
Testifying in his own behalf, appellant related that the deceased gave him the gun as they were walking on the sidewalk and that the hammer was already pulled. When appellant told the deceased that he was going to throw the gun into the canal, the deceased suddenly grabbed appellant's right elbow with one hand and the gun with his other hand in an attempt to take the gun away from appellant. Appellant testified:
In Dockery v. State, 542 S.W.2d 644 (Tex. Cr.App.), this Court wrote concerning the issue of accidental homicide:
"Section 6.01(a) of our new Code provides:
The testimony summarized and quoted above was sufficient to raise an issue of fact as to the voluntariness of appellant's conduct. It is settled that an accused is entitled to an instruction on every defensive matter raised by the evidence. Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App.). The testimony of the defendant alone is sufficient to raise the issue. London v. State, 547 S.W.2d 27 (Tex.Cr.App.). The failure to grant the timely filed and properly requested special instruction on accident constituted reversible error.
The judgment is reversed and the cause remanded.
Before the court en banc.
ON DENIAL OF STATE'S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING
DOUGLAS, Judge, dissenting.
The majority denies leave to file the State's motion for rehearing. On original submission, the panel reversed the conviction because the court did not instruct the jury to acquit if the homicide was the result of an accident. The 1925 penal code, Article 39, provided for the defense of accident. The present code has no such provision as the defense of accident. The majority relies upon the dictum in Dockery v. State,
A charge on accident is not required by the statute, but the majority ignores it.
The requested charge is as follows:
He did not request a charge on the lack of voluntariness. A trial judge would have to be clairvoyant to guess that a charge on lack of voluntariness would be necessary under the requested instruction. Articles 36.14 and 36.15, V.A.C.C.P., provide that an objection to a charge and a requested charge should be specific.
Since accident is not a statutorily designated defense, it was not error for the trial judge to deny the requested instruction submitted.