Jim Curtis v. The State, 22 Tex. Ct. App. 227

Willson, Judge. Appellant was indicted at the July term, A. D. 1886, district court of Williamson county, for the murder of George Walton, on December 24, 1885. The wound was inflicted on that day, but Walton did not die until April 13, 1886. In the January term of same court, 1886, appellant had been indicted for assault with intent to murder Walton, and was tried at that term on that indictment, and convicted and punished for an aggravated assault.

At the July term, 1886, he was placed upon trial on the second indictment, pleaded, specially, former jeopardy, former acquittal and former conviction, and also not guilty. His special plea was found untrue, and he was convicted of murder of the second degree, and his punishment fixed at seven years confinement in the penitentiary. The defendant’s first three assignments of error,' which involve the same principle, are submitted and will be considered together.

The question presented by these assignments is well stated in the argument of counsel for defendant as follows: “Does a prosecution upon indictment, in a court having jurisdiction of that offense, for assault with intent to murder, instituted in good faith by the State, and prosecuted to a final determination on the merits, prior to the death of the party injured, which results in a verdict acquitting of all grades of offense higher than aggravated assault, and a conviction of that offense and payment of all penalties denounced, have any effect upon a prosecution for murder, based upon the death of the party, resulting from the identical act of the defendant upon which the former prosecution was predicated?” In Johnson v.

The State, 19 Texas Court of Appeals, 453, we held that a conviction of aggravated assault and battery, upon an indictment charging an assault with intent to murder, could not bar an indictment for murder, although the assault and battery was the same act which produced the murder, because, at the date of the conviction of the assault and battery, the party assaulted was living, and the offense of murder had not then been completed. In support of this view we cited those standard authors, Wharton and Bishop (Whart. Cr. Pl. & Pr. sec. 476; 2 Bish. Cr.

Law, sec. 1059), whose texts fully sustain our decision; and in support of their texts they cite a number of decisions, only a few of which we have had access to, but as far as we have examined the cases cited they sustain the texts of those eminent authors. The reason of the doctrine is well stated in a Scotch case by Lord Ardmillan as follows: “ There never can be the crime of murder till the party assaulted dies; the crime has no existence in fact or law till the death of the party assaulted.

Therefore, it can not be said that one is tried for the same crime when he is tried for assault during the life, and tried for murder after the death, of the injured party. That new element of the injured person’s death is not merely a supervening aggravation, but it creates a new crime.” (Stewart’s case, 5 Irvine, 310, cited in note to sec. 1059, 2 Bish. Cr. Law.) We believe this doctrine to be sound in principle and sustained by unanswerable reason. The assault and the murder are not the same offense within the meaning of the words “same offense,” as-used in the Constitution.

If the offense of murder had been completed by the death of the injured party at the time of indictment found, then the assault would be included in the murder, and the State could carve but one offense out of the transaction, and if, in such case, the indictment be for an assault, a conviction or an acquittal thereunder would be a bar to a prosecution for any grade of homicide.

But this doctrine of carving has no application to the case under consideration, because at the time of the first prosecution there was no offense of murder, and the State had no election to carve as between an assault and any grade of homicide.

We do not think that this view of the question conflicts with, or in any way infringes upon, any provision of our Constitution, for the simple reason that the offense of which the defendant was first convicted or acquitted is not the same offense for which he is being tried, within the meaning of the Constitution and the law the offense for which he is being tried having no existence at the time of said first conviction or acquittal.

Between the Johnson case, supra, and the one before us there is this difference: Johnson was, upon the second prosecution, convicted of manslaughter only, while this defendant stands convicted of murder in the second degree.

It is insisted by counsel for defendant, in a very able argument, that this difference in the cases is very material, in this, that the effect of defendant’s conviction of an aggravated assault and battery in the first prosecution under the indictment charging an assault with an intent to murder was to acquit defendant of malice, and therefore he could not thereafter be tried for and convicted of murder, because malice is an essential ingredient of murder. That he could only be tried and convicted for a grade of homicide not involving malice.

This argument is very plausible, and, when first presented, it appeared to us unanswerable. But upon reflection we are satisfied it is specious. A complete answer to it, ■ in our judgment, is that the acquittal of the defendant of the charge of assault with intent to murder was not necessarily a finding by the jury that the defendant was not actuated by malice in committing the assault. The jury may not have been satisfied from the evidence that he committed the assault with a specified intent to hill the injured party, and upon this ground alone may have acquitted him of that offense.

This specific intent is as essential an ingredient of the offense of an assault with intent to murder as is malice, while it is not an essential ingredient of murder. Murder may be- committed when there is no specific intent to kill the deceased. It is plain to our minds that the verdict of the jury convicting the defendant of an aggravated assault and^battery can not be held to be necessarily an acquittal of the charge, that the act was committed with malice aforethought.

It was an acquittal of the charge of assault with intent to murder, but it can not be claimed that it was an acquittal of each and every separate ingredient of that offense. If the jury could not have acquitted him of said offense upon any other ground than the absence of malice on his

part in the commission of the act, the position contended for by counsel would be sound, and we would have to.hold that defendant could be tried for no higher grade of homicide than manslaughter. These being our views we answer the question propounded by defendant’s counsel in the negative and hold that there was no error in the rulings or charge of the court with reference to defendant’s special pleas. It is objected to the charge of the court that it does not s ubmit to the jury the law o.f negligent homicide.

It is contended by counsel for defendant that the issue of negligent homicide in the second degree is fairly raised and presented by the evidence, and we concur with counsel in this view of the evidence. One phase of the case, that relied on by the State, is that the defendant “voluntarily, unlawfully and wantonly, and with utter and reckless disregard of human life, shot off a pistol into and among a crowd of men, and in doing so did inflict a wound upon George Walton, then in said crowd,” from which wound said Walton died.

This phase of the case is strongly supported by the evidence, and was submitted to the jury by the charge of the court. But defendant’s counsel insists that there are two other phases of the case, to-wit: First, that the killing was accidental; arid, second, that it was the result of negligence and carelessness while the defendant was in the performance of an unlawful act, that is, while defendant was committing a misdemeanor by discharging his pistol in a public place. As to the first of these phases the court sufficiently instructed the jury. As to the other no instruction was given.

Opinion delivered November 13, 1886. While the evidence in support of this last named phase of the case may not be satisfactory, or even strong, still there are facts in proof which fairly present the issue, and tend to establish the theory that the offense committed was that of negligent homicide of the second degree. This being our view of the evidence, we hold that the law of negligent homicide of the second degree was a part of the law of the case, and that the failure of the court to give it in charge to the jury was error, for which the judgment must be reversed.

We do not recite the evidence upon which we base this conclusion, as the facts will be stated by the reporter, and it will be seen therefrom that the jury might well have concluded that the killing was not a higher grade of homicide than negligent homicide of the second degree. As to other objections made to the charge of the court we shall not consume time in discussing and determining them, as upon another trial the supposed errors complained of are not likely to occur. Because the court omitted to charge the law of negligent homicide of the second degree the judgment is reversed and the cause is remanded.

Reversed and remanded.