Morris v. State , 35 Tex. Crim. 313 ( 1895 )

HENDERSON, Judge.

The appellant was tried in the court below on an indictment charging him with negligent homicide in the first degree; was convicted, and his punishment assessed at a fine of $75; and from the judgment of the lower court he prosecutes this appeal. There is nothing in appellant’s motion in arrest of judgment. . Wé think the statutes on the subject sufficiently define “negligent homicide.” Aj>pellant complains of the action of the court in allowing several State’s witnesses to testify as to declarations of appellant, made where the body of deceased was found in the road. It appears that, after the deceased fell or was thrown from the wagon, the appellant drove his wagon a short distance further, and then returned to the place where the deceased was found lying in the road in an unconscious condition, and he there remarked “that the God damn fool jumped out of the wagon, and broke his damn-fool heck. If I had a boy that had no more sense than the deceased, I would take him out and kill the damn fool.” Appellant was drunk, and commenced to sing, “Old Time Religion.” He said a great many foolish things that the witnesses could not remember. These expressions were used at the place where the homicide occurred, very shortly afterwards,—could not have been exceeding a few minutes; wore a part of the res gesta;, and so admissible in evidence. Nor do .we think the court erred in refusing to give the special charge asked by appellant on this subject. Said evidence, as adduced, was a part of the case, and was looked to, under the charge of the court, not as indicating any malice on the part of appellant, because this was not a charge of malicious killing, but was looked to simply by them as a circumstance to characterize the act of appellant in driving the team on that occasion as negligent. There was no error on the part of the court in failing to further define “negligence” than as given in the main charge. The charge of the court is in the following language: “The degree of care and caution required to avoid danger is such as a man of ordinary prudence would have used under like circumstances.” This was in accordance with the language of the statute on the subject, and is in consonance with the ordinary definition of negligence. Nor do we think the court erred in refusing to give the charge asked by appellant, as presented in his bill of exceptions No. 2. We do not believe the facts of this case required the court to give the special charge asked, hinging appellant’s guilt on the consciousness on his part that his acts were then endangering the life of deceased. The facts show that the deceased was riding in his wagon, and that he drove his team in a furious and rapid manner. In such condition, he was charged with notice that his acts did endanger the life of the deceased.

Appellant also complains that the o.ourt should have given his special charges, Nos. 3 and 4, asked, "which presented the issue that deceased jumped from the wagon, instead of being thrown out, as charged in the indictment. The charge contained in the indictment, and which constituted the gravamen of the offense, was that appellant was negligent in driving the wagon, in which deceased was riding, in such a rapid manner along the road as to endanger the life of deceased, who was riding in his wagon at the time, and that deceased was thrown therefrom. No one appears to have seen exactly how deceased got out of the wagon. After he was out some one, either the parties in the same wagon, or in another "wagon that was racing with appellant’s, noticed it, and, on attention being called to the fact, they went back a short distance and found deceased lying in the road dangerously hurt and in an unconscious condition. The gist of the charge against appellant "was rapid and negligent driving. The charge in the indictment is, that he was thrown from the wagon. Evidently he was hurled to the ground with a great deal of force, and whether his being so thrown and burled from the wagon was without any volition on his part, but simply on account of the speed of the driving, or whether in an attempt to get out of said vehicle, he was violently thrown therefrom, it occurs to us is immaterial. In either event the appellant was liable for his negligence in driving at such a furious rate of speed. Whar. on Horn., Secs. 109, 360, -374. We would further observe, that it is a familiar principle of the law of homicide, that, as to the allegation of the instrument, by which death is inflicted, there is no variance where the proof shows, that another instrument than that alleged was one causing the same character of wound or injury; so that it would appear to be immaterial whether he was thrown from the wagon wholly without any volition on his part, or thrown from it while exercising a volition to get out of the vehicle to save himself on account of the rapid and dangerous speed at which it it "was being driven.

As to the remarks of the County Attorney, in his closing argument, if the appellant apprehended any injury therefrom, it was his duty to ask that the court eliminate the same from the consideration of the jury before he can be heard to complain.

The questions in this case, we think, were fairly submitted to the jury, and from the evidence they believed that the aptpellant was negligent, under the circumstances, in driving his team at a furious rate of speed while the deceased was riding in his wagon, and that such rate of speed created an apparent danger, causing the death of deceased, and that the same was negligence on his part. The verdict of the jury is, in our opinion, supported by the evidence in this case, and the judgment should be affirmed.

Affirmed.