Richards v. State , 35 Tex. Crim. 38 ( 1895 )

Appellant was convicted of murder in the second degree for shooting and killing Anestacia Tenoria. There is no manslaughter in this case. There is some testimony tending to show that appellant shot at Juan Rios, and killed the deceased, Mrs. Anestacia Tenoria. Counsel for appellant, under this state of the case, requested the court to instruct the jury as follows: "Unless the evidence establishes in your minds, beyond reasonable doubt, as a fact, that the defendant did unlawfully kill the deceased, with malice aforethought against her individually, you cannot convict the defendant of murder of either degree; and you are further instructed that malice aforethought against Juan Rios, however much entertained by the defendant, and the intention to kill him, cannot be transferred to the deceased, so as to render the defendant guilty of the unlawful killing of the deceased with malice aforethought." "To render the defendant guilty of manslaughter, the evidence must satisfy you, beyond a reasonable doubt, that the defendant did voluntarily, and of a purpose to kill her, the deceased, unlawfully and intentionally, shoot and kill her, as charged in the indictment. The purpose and intent to kill another person, with or without malice, if it does not include the purpose and intent to kill the person slain, cannot be transferred to the person actually killed." The court refused these instructions, and counsel for appellant assigned this for error. The question here presented is, if A. shoots at B., intending, with the malice aforethought, to unlawfully kill B., but unintentionally shoots C., would A. be guilty of murder? At common law, evidently, he would. The authorities are all to this effect. How in this State? The definition of murder at common law and in this State is the same substantially, — precisely the same, so far as this question is concerned; for at common law and in Texas, to constitute murder, the killing must have been done with malice aforethought. At common law it is well settled, in fact, is placed beyond question, if a party, with his malice aforethought, attempts to kill a certain person, but in the attempt kills another, he is guilty of murder, — he is guilty of a homicide with malice aforethought. Counsel for appellant concede this to be the rule at common law, but contend that it is not the rule in Texas, because of the statutes of this State. If the statute speaks upon the subject, the common law must yield, and the statute prevails. The question, therefore, is, does the statute of this State change the common-law rule in regard to this matter? It is insisted by counsel for the appellant that it does, relying for his support of this position upon Article 44 of the Penal Code, which reads: "No act done by accident is an offense, except in certain cases specially provided for, where there has been a degree of carelessness or negligence which the law regards as criminal." These certain cases which the law provides for will be found Chapter 13 of the Penal Code. Article 579 of that chapter provides that "if any person, in the performance of a lawful act, shall by negligence and carelessness cause the death of another, he is guilty of negligent homicide of the first degree." Article 587 provides that the definitions, rules and provisions of the preceding articles of this chapter with respect to negligent homicide of the first degree apply also to the offense of negligent homicide of the second degree, or such as is committed in the prosecution: of an unlawful act, except when contrary to the following provisions: Article 588. — "Negligent homicide of the second degree can only be committed when the person guilty thereof is in the act of committing or in attempting the commission of an unlawful act." Article 589 defines an unlawful act. These provisions of the statute, including Article 44, and all the provisions of Chapter 13, furnish no support for the position of counsel for appellant, but Article 590 settles this question against the contention of the counsel for appellant. It provides that "when one, in the execution of or in attempting to execute an act made a felony by the penal law, shall kill another, though without an apparent intention to kill, the offense does not come within the definition of negligent homicide." The question then arises, if the party, in attempting to commit an act which is a felony by the law of this State, shall kill another, without intending to kill him, of what offense would he be guilty? This question is answered not only by the common law, but by Article 47, which reads: "If one, intending to commit a felony, and, in the act of preparing for or executing the same, shall, through mistake or accident, do another act which, if voluntarily done would be a felony, he shall receive the punishment affixed by law to the offense actually committed." In this case the other act — that, done by accident — was the shooting and killing of deceased. Now, if appellant had voluntarily, with his malice aforethought, shot and killed the deceased intentionally, he would have been guilty of a felony, to-wit: murder. Therefore, he would be guilty of the murder of deceased if he, with his malice aforethought, shot at Juan Rios, intending to kill him, but by accident killed the deceased. If this is not the meaning or proper construction of this statute, it has no meaning, and has no practical application to the subject-matter under discussion, or any other subject. Counsel for appellant contends that there is a hiatus in the statute; that the Legislature should have named the offense of which the party would have been guilty if he violated Article 590, which reads: "When one, in the execution of or in attempting to execute an act made a felony by the penal law, shall kill another, though without an apparent intention to kill, the offense does not come within the definition of negligent homicide." It was altogether unnecessary to do so, the rule being well settled that where a party, in attempting to commit a felony, kills another, whether by accident or intention, with malice aforethought, nothing less than murder could be the result. This rule was of such long standing, so well settled and understood, that it was altogether unnecessary to say anything upon this subject. Article 44, which provides that "no act done by accident is an offense," has no reference whatever to the accident in this case. When the appellant, with his malice aforethought, discharged that gun, it was not an accident, within the meaning of said article. We will not — for we think it unnecessary — elaborate this proposition. It is true, in one sense, it may have been an accident, — the killing of deceased, — but not within the meaning of the statute. We listened with great pleasure and interest to the learned and exhaustive argument of counsel for appellant, but we deem it unnecessary to elaborate this question. We are of the opinion that the court acted properly in refusing to submit to the jury the charges requested by counsel for appellant. The judgment is affirmed.

Affirmed.