OPINION
Thе conviction was for the offense of murder with malice; punishment was assessed by the jury at confinement in the penitentiary for life.
Although the sufficiency of the evidence hаs not been challenged, the nature of ap *808 pellant’s complaint makes it obligatory that a protracted discussion of the facts he made.
On January 23, 1971, the aрpellant and Marilyn Grace, a prostitute, were sitting in her automobile in the parking lot of the Club Lorraine in Houston. Appellant testified in his own behalf and admitted that Miss Gracе was his “young lady” and had been working for him for about a month and a half. At the time of trial, she was dead from an overdose of heroin. From the testimony adduced, it appears the working arrangements were that Miss Grace delivered the entire amount of her earnings from prostitution to appellant, who in turn managed the money and provided hеr living quarters with him at the Alfron Motel.
Clarence La Bree, the deceased, pulled into the parking lot beside appellant, arranged a date with Miss Grace, and deрarted with her in his automobile. Before leaving, Miss Grace informed appellant that this was a $25.00 “trick” paid in advance. Shortly thereafter, she came into the bar in an еxcited state and told appellant that La Bree had taken the money away from her after she had serviced him. Immediately, appellant ran to the parking area where La Bree was leaving in his car. He got in on the passenger side and began discussing the “misunderstanding” with the deceased. While appellant was making demand for thе $25.00 taken from his “young lady,” the deceased began slowly driving down the street. By his own admission, appellant threatened to call the police and charge La Bree with rаpe and robbery if he did not pay the $25.00.
At this point, the deceased stopped the car, brandished a small caliber pistol and ordered appellant to get оut. As appellant stepped out of the car, he turned and wrestled for the gun with the deceased. The evidence is conflicting as to exactly how appellant incurred his injuries, 1 but he contends that the deceased shot him twice during the struggle before he managed to wrest the pistol from the deceased. Testimony elicited from aрpellant indicates that once he gained control of the gun he intentionally fired the first shot which struck the deceased in the right cheek. 2 As the deceased was baсking out of the car, appellant tried to pull him back inside and, while doing so, the pistol “accidentally” discharged a second time striking decedent in the base of the head. The pathologist testified that the deceased died from the gunshot wounds, but that the wound in the base of the head was the “more disabling” wound.
It was further developed that two еyewitnesses saw appellant beat the decedent in the head with a brick and rummage through the pockets of his clothing. Both witnesses testified that when asked what was wrong аppellant replied, “He wouldn’t pay me $25.00 for my whore ... I don’t give a damn about him . . .He should have paid my trick $25.00. He should have paid my whore $25.00 and this wouldn’t have happened. . . . ” Aft-erwards, appellant was observed throwing La Bree’s body onto the street and driving over it with the car as he fled the scene.
Appellant has proffered a single ground оf error for our consideration, wherein he complains of the trial court’s failure to afford him a charge to the jury on the law of accidental homicide. Apрellant correctly states the law that one is entitled to a charge on every issue raised by the evidence, and a defendant’s testimony alone is sufficient to raise such a defensive
*809
theory. See Ray v. State,
Art. 1228, Vernon’s Ann.P.C., provides: “Homicide is excusable when the death of a human being hаppens by accident or misfortune, though caused by the act of another who is in the prosecution of a lawful object by lawful means.” (Emphasis added)
The legislative intent is manifest; the defense of accident which will legally excuse the taking of another’s life is limited to situations where the activity engaged in by the defendant is lawful. Conversely, the inescapable implication of Art. 1228 is that the homicide will not be excusable if оne is in the pursuit of an unlawful activity. The Legislature has embodied this express qualification on the defense of accident in Art. 42, V.A.P.C.
Art. 42 mandates that one intending to commit a felоny, who accidentally commits another felony is not legally excused but will receive the punishment affixed to the felony actually committed. The complete and аbsolute exonerating defense of accident is abrogated in these situations. Art. 42 is a statute which, as a matter of law, transfers the intent from the crime contemplated to the one actually committed. A defendant may not rely on the doing of an unintentional act as a defense when he, in fact, intended to commit another crime.
This Cоurt has held that it is proper for a trial court to refuse to charge the jury on the law of accident as a defense in murder cases where the killing was committed while thе defendant was preparing for or committing a felony. Caraway v. State,
The facts in the instant case fall within the purview of the abоve cited authorities. Appellant took the stand and admitted to conduct which constitutes, at the very least, 3 the offense of pandering, Art. 519, V.A.P.C. He confessed to prоcuring Marilyn Grace for the purpose of prostitution and encouraging her to engage in such activity. In this State, pandering is a felony punishable by confinement in the penitentiary for any number of years not less than two. While attempting to collect the fee for Miss Grace’s services as a prostitute, appellant maintains he aсcidentally killed Clarence La Bree. These facts do not entitle appellant to an untrammeled defense of accident which would completely *810 exоnerate him of criminal liability. Public policy demands that persons engaged in criminal activity should not be allowed to escape the consequences of their misconduct merely because they accidentally commit a different offense than originally contemplated.
No error is shown.
The appellant has not complained of the defective sentence; however, the sentence does not comply with the indeterminate sentence requirement of Art. 42.09, Vernon’s Ann.C.C.P. Howard v. State,
As reformed, the judgment is affirmed.
Notes
. Two Houston police officers testified that appellant told them he was shot by some other “pimps” driving by in a black Cadillac involving a private dispute. Also, eyewitnesses to the shooting stated they did not notice appellant being wounded at the scene of the crime.
. Appellant maintains this first shot was self-defense аnd the trial court granted him a charge on that defensive issue. There is serious question as to the propriety of granting such a charge where appellant admits to having provoked the struggle by initiating the attack upon the decedent after attempting to extort money from him.
. It appears from the record that appellant may also have confessed to committing other crimes. There is evidence which indicates that extortion and procuring may have been committed. As discussed in footnоte 2, supra, there is serious question as to whether the issue of self-defense was really raised in provoking the initial attack which would constitute an assault with intent to murder because appellant admits to deliberately firing the first shot.