19 S.W.2d 47 | Tex. Crim. App. | 1929
Offense, murder; penalty, twenty years.
A former appeal of this case is reported in 4 S.W.2d , P. 52. The facts will be found stated therein. We supplement this statement to illustrate one of the law points discussed: Deceased and two boy companions had started wolf hunting. On and near a public road a difficulty ensued between the three American boys on one hand and five Mexican boys on the other. The State's testimony tended to show that the deceased held a lantern and that appellant held his pistol straight out in the air and fired, there being at the time a few feet distance between the two groups. Appellant testified:
"After they got over into the field, the American boys stopped and commenced cursing me again. As they had seen me with this gun, why, I thought they might be armed and might shoot at me, because a man without any arms wouldn't stop and curse a man with a gun, and so I shot to scare them. I did not shoot at any of those boys, but just shot right down into the ground out from me. * * * I fired the shot in the direction of where they were, but down at the ground. I did not pick out one of them to shoot at because I couldn't see them, but could see only the light. I did not try to hit the man that held the light, but shot down. * * * I had no intention of hitting any of them when I did fire the shot, but shot only to scare them."
Many bills of exception appear in the record questioning the admissibility of evidence of the acts and conduct of appellant's companions *162 at the scene of the shooting, as well also as some of their subsequent acts and that of appellant.
The theory of the State and its evidence tended to show that the five Mexicans were present and acted together in the commission of the offense. The acts and conduct of each of them at the time of the alleged commission of the offense were admissible as res gestae. The theory of the appellant was that the killing was an accident and some of the subsequent conduct inquired about was clearly admitted, we think, upon the theory that such conduct was inconsistent with their claim on the trial that the killing was not intentional. In our opinion there is no merit in any of these bills and we dispose of them without discussing each one separately.
Various exceptions were urged to the following portion of the Court's charge:
"* * * and in this case, if you find from the evidence, beyond a reasonable doubt, that the defendant, Secondino Rodriquez, on or about the time alleged in the indictment, deliberately and recklessly fired a gun in the direction of and towards a group of persons in such manner and under such circumstances that the death of any one of such persons resulted therefrom, and that such reckless firing, if any, was not under such circumstances as to reduce the killing to negligent homicide or manslaughter, hereafter defined, then you will find the defendant guilty of murder. * * * It is not necessary for the defendant to have had the specific intent to kill in order to make him guilty of murder, if you find from the evidence, beyond a reasonable doubt, that he fired a gun in the direction of or toward the deceased or a group of persons of which the deceased was a member, deliberately, wantonly, wrongfully, and recklessly, in such a manner as that any member of such group of persons might be killed."
Is this charge correct under the facts of this case? The case of Miller v. State,
The vice in the above charge may perhaps be best shown by illustrations. Suppose A fires his gun deliberately and recklessly into a pasture towards a point where unknown to him there is hidden a group of persons. Would he be guilty of murder, if he should under such circumstances unintentionally kill one of such group? Again, suppose A fires his gun deliberately and recklessly into the ground but in the direction of a group of persons without any intent to kill any member of such group, but only with the intent to alarm *163
them or some of them, and the bullet is deflected and in fact kills one of the group. Is this murder? Does the act of deliberately and recklessly firing a gun supply the indispensable element of an intent to kill in all cases? The undisputed facts and circumstances may be such that the law will conclusively presume an intent to kill where a gun is intentionally fired by one into the body of another. So also the intent to kill will be supplied by the law when one unintentionally commits a homicide in the perpetration of burglary, robbery, etc. Hedrick v. State,
For such error the judgment of the trial court is reversed and cause remanded.
Reversed and remanded.
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.