Harris v. State, 23377.
Citation | 198 S.W.2d 264 |
Decision Date | 30 October 1946 |
Docket Number | No. 23377.,23377. |
Parties | HARRIS v. STATE. |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from Taylor County Court; Wiley Caffey, Judge.
R. T. Harris was convicted of negligent homicide of the second degree and he appeals.
Reversed and remanded.
Scarborough, Yates & Scarborough, of Abilene, for appellant.
Ernest S. Goens, State's Atty., of Austin, for the State.
The killing here depicted is both tragic and pathetic—tragic, in that the life of a fine sixteen-year-old high school student was forfeited; pathetic, in that death was caused by the carelessness and negligence, with no intent to kill, of a seventy-three-year-old retired farmer-preacher, who had never before been charged with a violation of the law and who had always borne a good reputation as a law-abiding citizen.
The Park Board of the City of Abilene operates Fair Park. Among the buildings in the park was one known as the "Youth Center," where young people could and did meet for amusement and entertainment. Mrs. Austin was the director and in immediate charge thereof.
Appellant was employed as a night watchman in the park. As a part of his duties, he was to look out for and prevent fire to the buildings.
On Halloween night, October 31, 1945, quite a crowd of young high school students were gathered in the "Youth Center." As is customary on such a night, they were indulging in much frivolity, including the striking of matches, shooting of firecrackers, and the bursting of torpedoes inside the building. The danger of fire attracted appellant's attention and he went over and into the building; he found much smoke therein. He and Mrs. Austin, the director, decided that the danger of fire was so great as to require closing the building. The young people were requested to and did— with some degree of reluctance—leave the building, after which Mrs. Austin closed it.
Appellant went out of the building with them and after the door was closed, appellant stood in the doorway or alcove. While standing there, firecrackers, torpedoes, and water bombs were thrown and exploded around him and the building and some of the boys, endeavoring to re-enter the building began to yell, Appellant says there were twenty or twenty-five boys around in front of him. One State's witness said there were fifty or more boys outside the building. Other witnesses said there were some girls, also, in the crowd.
The deceased, Herschel Jeter, was among those present. There is no testimony showing that he was an active participant in the shooting of the fireworks, or that he was doing anything in particular. About all the testimony regarding him is that he was in the crowd.
There is no suggestion in the testimony that the appellant knew Jeter or that Jeter had said or done anything to the appellant whereby appellant might have had any animosity or ill-feeling towards him.
Up to this point, the facts are not materially disputed. Four of the boys present testified for the State. Two of these were sixteen years of age. The ages of the other two were not stated.
As to what happened immediately before and at the time of the shooting, the witness Jones testified:
The witnesses Austin and King corroborated the testimony of Jones, as well as the State's theory that when appellant fired the pistol it was not pointed down but on a level or straight line.
As a result of the pistol shot, Herschel Jeter was killed, the bullet passing through his arm and into his stomach.
The State introduced in evidence a statement the appellant made after the shooting, viz.: "I opened the door and went outside * * * I pulled my gun and shot to scare the boys."
Appellant, testifying as a witness in his own behalf, denied knowing the deceased and an intent to kill. He said that he drew his pistol and fired the shot down "right at my feet" to scare the boys into leaving, and to prevent further shooting of fireworks in and around the building. He testified:
Appellant denied having fired the pistol while holding it level or "straight out" and said that if the pistol was fired while in that position it was entirely accidental.
An examination of the concrete walk where appellant was standing when he claimed to have fired the shot at his feet failed to reveal any evidence of a bullet mark thereon. The distance between appellant and deceased when the shot was fired was twelve or fourteen feet.
Upon the facts stated, appellant was convicted of negligent homicide of the second degree and his punishment assessed at confinement in jail for a term of two years.
The unlawful act alleged in the indictment, as a basis for the accusation of negligent homicide and upon which the conviction rests, was that "the said R. T. Harris was then and there unlawfully attempting and was in the act of committing an assault upon Herschel Jeter." The effect of that allegation was to charge appellant with a simple assault upon the deceased. Such allegation is of commanding importance in determining this appeal.
The sufficiency of the evidence to support the conviction is challenged by appellant.
Negligent homicide of the second degree arises primarily out of the facts showing a homicide which occurs in the performance of an intended unlawful act not rising above the grade of a misdemeanor, with no intent to kill. 22 Tex.Jur., p. 584, Sec. 102; Egbert v. State, 76 Tex.Cr.R. 663, 176 S.W. 560.
An accidental killing arises when the act which causes the death was unintentionally done. Egbert v. State, supra.
So then, in a broad sense, a distinguishing element between negligent homicide and accidental killing lies in the fact that, in the first, the act which causes death must be intentionally done, while in the other, the act which causes the death was unintentional.
It is also well...
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