Austin Clark v. The State, 19 Tex. Ct. App. 495

"White, Presiding Judge.— A fight had occurred between the wives of appellant and one Coleman Nowlin. Just after they had been separated, appellant called Nowlin’s wife “a long-legged yellow bitch.” Nowlin ran up to defendant and asked him if he called his wife a bitch, at which defendant ran and picked up his gun, and said he was going to kill the yellow son of a bitch. Deceased Welden caught hold of the muzzle of the gun to prevent defendant from shooting Nowlin, and Nowlin also got hold of the barrel of the gun.

The three parties were struggling over the gun when it was discharged, the contents entering the right breast and liver of Henry Welden, who was a friend of both the other parties, and who, when shot, was endeavoring to get the gun in order to prevent either of them from shooting the other. Welden died the next day. Appellant was tried for his murder, and was found guilty of manslaughter, with punishment affixed at three years in the penitentiary. From this judgment his appeal to this court is taken.

Upon the law of manslaughter as applicable to the facts proven, the charge of the court was: “ If you shall believe from the evidence that the defendant, at any time within three years next before the said 28th day of May, 1884, did then and there assault said Coleman Nowlin under such circumstances as, if death had ensued, it would have been manslaughter as hereinbefore defined, and that, while making said assault, he accidentally shot and killed said Welden, then you will convict him of manslaughter,” etc. Charges were also given upon the law of self-defense and reasonable appearances of danger.

Defendant’s special instructions, which were refused, in so far as they were applicable and not embraced in the general charge, were substantially: “1. If the jury shall find from the evidence that the deceased was accidentally or unintentionally killed, they will acquit the defendant.” “ 2. If the jury shall find from the evidence that at the time the fatal shot was fired the defendant did not intend to shoot the deceased, but that the intention was to commit an assault upon the witness Coleman Nowlin, the defendant would in such case be guilty of negligent homicide, and not murder or manslaughter.” “ 3.

Insulting words or conduct of the person killed towards a female relative of the party guilty of the homicide is adequate cause sufficient to reduce murder to manslaughter; and in this case, if you shall find from the evidence that Harriet Nowlin, the wife of Coleman Nowlin, in the presence of said Nowlin called Fannie Clark, defendant’s wife, a bitch, and the said Nowlin did, by words and acts then used, confirm the words of his said wife, and the same were the cause of the homicide, then, had Nowlin died, defendant would, if you shall so find, be guilty of manslaughter, and in this case defendant would be guilty of negligent homicide in the second degree.” Accidents are provided for specially by our statutes, which declare that “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.” (Penal Code, art. 44.) But, “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.” (Penal Code, art. 47.) If A. shoots at B. with express malice, and by accident kills C., the offense is murder of the first degree.

This is not because of any malice in fact against C., but because of the evil design against B., which, it is said, is carried over against C. by legal implication. (4 Black. Comm., 201.) This rule of the common law is, however, qualified and modified by our statute. (McCoy v. The State, 25 Texas, 33.) If one committing an assault with intent to murder another accidentally kill a third party, he is guilty of murder in the second degree. (McConnell v. The State, 13 Texas Ct.

App., 390, and authorities cited.) But if the act done is the unintentional homicide of a different person from the one intended, but without malice and while the mind is under the immediate influence of sudden passion arising from an adequate cause, such as anger, rage, sudden resentment or terror, rendering it incapable of cool reflection, the crime is manslaughter, because the one intended was manslaughter. “ The intent is the essence of the crime, and when the intention and the act resulting from it are precisely the same, whether the fatal shot takes effect upon the party for whom it was aimed or on some one else, the guilt, it would seem, should be the same,”— except in cases of murder of the first degree, where it is required there must be express malice towards the party killed. (Ferrell v.

The State, 43 Texas, 503.) If a party shoots in necessary self-defense, and accidentally kills a third person, it is no offense. (Plummer v. The State, 4 Texas Ct. App., 310.) With regard to negligent homicide, either of the first or second degree, the law is that “ there must be no apparent intention to kill.” (Penal Code, art. 584; Robbins v. The State, 9 Texas Ct. App., 667, and 671; Aiken v. The State, 10 Texas Ct. App., 610.) And it is further provided 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.” (Penal Code, art. 590.) Under the facts we have stated, when the law is applied, we think it must plainly appear that appellant was, when he seized the gun with which the homicide was committed, either acting in his own proper self-defense or that he seized it intending to kill Nowlin, because Nowlin had by his acts and conduct excited him to a degree of passion which rendered his mind incapable of cool reflection.

As to self-defense, the question was fairly submitted under appropriate instructions to the jury. If he was intending to kill Nowlin, then, no matter what the condition of his mind might be, provided he was not acting in his proper and legitimate self-defense, he was perpetrating a felony, and there could not in that event be a question of negligent homicide as to the act committed. The question of an intention only to commit an assault upon Nowlin, short of taking life, does not, we think, arise upon the evidence.

Defendant’s language and acts, when he seized the gun, indicated most plainly an intention to kill Nowlin, and not simply to assault him. Under the facts proven and the law, we are of opinion the law of the case was fully and fairly stated in the charge given by the court to the jury, and that the special requested instructions were not applicable to the facts of the case. Hence the court did not err in refusing them. We have been unable to find any error, in the record for which the judgment should be reversed, and it is therefore affirmed. Affirmed. [Opinion delivered December 2, 1885.]