Homer MCKENZIE, Appellant, v. The STATE of Texas, Appellee.
No. 49131.
Court of Criminal Appeals of Texas.
April 2, 1975.
Rehearing Denied April 30, 1975.
521 S.W.2d 637
Appellant‘s first ground of error is that the court erred in admitting thе affidavit of the Assistant Administrator for the Texas Alcoholic Beverage Commission, relating to the license issued to the “Toot-N-Totum” store, urging that a copy had not been furnished him as required by
Appellant‘s second ground of error is that the court erred in admitting evidence of criminal acts of persons other than the appellant. Appellant‘s complaint is directed toward the testimony of Officers Miller and Simmons that Billy Bаtes was armed, urging that the State sought to prove appellant‘s guilt by association.
The error here involved, if any, was made harmless when appellant called Bates as a witness and adduced from him that he was armed on the night in question. Cowles v. State, Tex. Cr.App., 510 S.W.2d 608. Berry v. State, Tex.Cr.App., 477 S.W.2d 284. We would note, however, that this evidence would be admissible as part of the circumstances surrounding aрpellant‘s arrest. Holcomb v. State, Tex.Cr.App., 484 S.W.2d 938, Cherry v. State, Tex.Cr.App., 479 S.W.2d 924. No error is shown.
Appellant finally contends that the evidence is insufficient to support the conviction. Appellant and his companions were observed from the time they were in the store until their arrest except for the short time when Smith called the police. Appellant was found in possession of a pistol approximately three blocks from the licensed premises. The jury was properly charged on the law of circumstantial еvidence. We find there is ample evidence to show that appellant carried the pistol on the prеmises in question.
The judgment is affirmed.
Opinion approved by the Court.
Douglas H. Parks, Dallas, for appellant.
Henry Wade, Dist. Atty., Richard W. Wilhelm, Asst. Dist. Atty., Dallas, Jim D. Vollers, State‘s Atty., and David S. McAngus, Asst. State‘s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
The record reflects that Sue Ann Sharer left the decеased, a five-year-old male child, and her three other children with appellant when she departed for wоrk on March 3, 1973. About 9:00 p. m., the manager of the restaurant where Sharer worked received a call from apрellant asking that she “tell Sue that I have killed her son.” Dr. William Sturner testified that an autopsy revealed that the primary сause of death was an external blow to the back of the head.
Among the contentions advanced by aрpellant, it is urged that the court erred in failing to grant his requested instruction to the jury on the law of negligent homicide. The Stаte responds by asserting that appellant was not entitled to a charge on negligent homicide since the jury wаs charged on the law relative to accidental homicide.
Appellant, testifying in his own behalf, related that the deceased had come in the house crying about 4:30 p. m. and stated that he fell from the monkey bars and wet his pants. Appellant told the deceased that there was no sense in crying and suggested that they do pushups and “flips.” Appellant stated that he had done “flips” with deceased before but on this occasion they were not well executed. Appellant described “flips” as follows:
“Well I [appellant] would sit in a chair facing the window and he [deceased] would be on my right side and as he would approach I would put one arm on his stomach and one on his head and he would do a complete somersault.”
According to appellant, the deceased fell tо the floor during the execution of the “flips” and it was his belief that the bruises found on the head of the deceased came from falls occurring during the “flips.”
In the recent case of Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975), this Court said:
“The difference between accidental homicide and negligent homicide is whether the act resulting in death was intentionally or unintentionally done. The focus is on the accused‘s act, not on the result of his act. Acсidental homicide is the result of an unintentional act while negligent homicide may only result from an intentional act.”
In Stiles, a thorough discussion was made of the cases which have been cited for the proposition that it is unnecessary to give a charge on negligent homicide where an instruction on accident is included in the court‘s charge. This Court concluded that thе language used in some of those cases is misleading if it is interpreted to mean that a charge on accidеntal 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.
Applying the test set forth in Stiles, we find that the evidence in the instant case raises the issue of negligent homiсide. Appellant testified he intentionally “flipped” the deceased child, and that the “flips” were not well executed аnd the deceased fell to the floor. 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. Stiles v. State, supra; Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716.
The judgment is reversed and the cause remanded.
Opinion approved by the Court.
DOUGLAS Judge (dissenting).
The majority reverses this conviction because the trial court did not instruct the jury concerning negligent homicide. The judgment should be affirmed for the reasons set forth in the dissenting opinions in Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975); and Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App.1975).