Anderson v. State

27 Tex. Ct. App. 177 | Tex. App. | 1889

Willson, Judge.

This appeal is from a conviction of negligent homicide of the first degree. The indictment charges the appellants and two other persons jointly with the commission of the offense. Appellants only were put upon trial, and the punishment assessed was a fine of two hundred and fifty dollars against each of them.

We think the indictment is a good one. It follows the statute defining the offense, and alleges all the elements of said offense, setting forth specifically the acts and omissions of the defendants, and alleging that said acts and omissions caused the death of the deceased. (Penal Code, art. 579.)

It was not error to refuse to permit Ducoing to testify in behalf of the defendants. It was made to appear by the State that said Ducoing was one of the persons charged jointly with defendants with the same homicide, but charged under a different name, the true name of said Ducoing having been mistaken by the grand jury presenting the indictment. Said Ducoing was an incompetent witness in behalf of defendants, he being in fact a principal in the offense and in reality but under another name charged as such in the indictment. (Code Crim. Proc., art. 731.)

As we view the evidence and the law applicable thereto, this conviction is not warranted. These appellants were brakemen. They had no control whatever of said engine and tender. They were riding upon the same for the purpose merely of performing their specific duties as brakemen, which duties had no connection with or relation to the homicide. It was the exclusive duty of the engineer and fireman to operate said engine carefully; to look out for obstructions upon the track; to give signals of danger when necessary. With these duties appellants were in no way concerned. They had no right to start the engine in motion, to blow the whistle, to ring the bell, to stop the engine, or otherwise.to control its movements. They performed no act which connected them with the death of the child. It is only for a supposed omission of duty on their part that they have been convicted of negligent homicide. They omitted to look out for obstructions on the track. They might have seen the child in time to save its life, but they omitted to see him. Or if they did see him they omitted to stop the train, or to signal the engineer to stop it.

Were these omissions criminal, within the meaning of the statute defining negligent homicide? We think not, because, to constitute criminal negligence or carelessness, there must be a violation of some duty imposed by law directly or impliedly, and with which duty the defendant is especially charged. Mr. Wharton says: “Omissions are not the basis of penal action, unless they constitute a defect in the discharge of a responsibility with which the defendant is especially invested.” (Wharton on Hom., sec. 72.) Again, this author says, in treating of omissions by those charged with machinery, etc.: “The responsibility of the defendant which he thus fails to discharge must be.exclusive and peremptory. A stranger who sees that unless a railway switch is turned, or the car stopped, an accident may ensue, is not indictable for not turning the switch or stopping the car. The reason for this is obvious. To coerce, by criminal prosecutions, every person to supervise all other persons and things, would destroy that division of labor and responsibility by which alone business can be safely conducted, and would establish an industrial communism, by which private enterprise and private caution would be extinguished, nothing can be effectually guarded when everything is to be guarded by everybody. Ho machinery could be properly worked if every passer by were compelled by the terror of a criminal prosecution to rush in and adjust anything that might appear to him to be wrong, or which was wrong, no matter how it might happen to appear. By this wild and irresponsible interference even the simplest forms of machinery would be speedily destroyed.” (Ibid, sec. 80.) And upon the subject of omission to give warning of danger, the same author says: “The test here is, is such notice part of an express duty with which the defendant is exclusively, charged? If so, he is responsible for injury which is the regular and natural result of his omission; but if not so bound, he is not so responsible.” (Ibid, sec. SI.)

These rules of the common law are not inconsistent with our statute, but are in harmony therewith, as we construe it. Ac we understand both the common law and the statute, there can be no criminal negligence or carelessness by omission to act. unless it was the especial duty of the party to perform the act omitted. Negligence or carelessness by omission presupposes duty to perform the act omitted, and can not, in law, be imputed except upon the predicate of duty.

Opinion delivered February 2, 1889.

In this case the evidence is uncontradicted and clear that appellants did not do any act or omit to do any legal duty, with reference to the deceased child. In law they are no more responsible for the death of the child than any other .person who-was present and witnessed the accident. They were strangers to the transaction, in contemplation of the law, because they were not charged with any duty with respect to it.

We are of the opinion that the judgment of conviction ife contrary to the law and the evidence, and therefore said judgment is reversed and the cause is remanded.

Reversed, and remanded,