McCray v. State

• Decision Date: 01 November 1911
• Citation: 140 S.W. 442
• Parties: McCRAY v. STATE.
• Court: Texas Court of Criminal Appeals

140 S.W. 442

McCRAY v. STATE.

Court of Criminal Appeals of Texas.

November 1, 1911.

Appeal from District Court, Harrison County; W. C. Buford, Judge.

George McCray was convicted of negligent homicide, and he appeals. Reversed and remanded.

Beard & Davidson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of negligent homicide; his punishment being assessed at a fine of $100.

The state's theory is that the appellant shot and killed Green Edwards without provocation, and without anything being said and done between the parties beforehand, showing any indication to commit the act, and that it was a sudden, intentional shooting. All of the evidence shows that appellant and the deceased up to the time of the killing had never had trouble or difficulty of any sort, but had been and were very friendly, as were their families. The killing occurred at the house of John McCray, Sr., appellant's father, where Green Edwards and his brother, Warren Edwards, had gone on a social call and for social pleasure, etc. The theory of the defendant was that the killing was an accident, and defendant's witnesses all testified to facts tending to establishing that fact. This evidence shows that Warren Edwards, Green Edwards, and the McCrays had always been on the most friendly terms; that the Edwards boys came to the house of John McCray, father of the McCray boys, on the night of the killing, reaching there just after sunset, and remained there, having a pleasant time, until about 11 o'clock at night, at which time Warren Edwards and Green Edwards were to start home. The McCray boys were to attend them part of the way. After Green Edwards had gotten up to start home, appellant and Austin McCray, and Green Edwards, got to pranking with a gun belonging to and in the hands of Green Edwards, which he had brought to McCray's with him. Warren Edwards was "pranking and playing with Mary McCray," a sister of appellant; Warren Edwards had a knife, and, as the witnesses say, was pranking with her with the knife open, at which time appellant picked up a gun setting in the corner, which he thought and believed was unloaded, cocked and held it up in a playful manner; that as he started to let the hammer down it slipped from his thumb, accidentally discharging and killing Green Edwards, who was standing near the door. It is further shown that this gun had been used by appellant in the morning of that day hunting. He thought and believed that he had unloaded the gun when he came home, and was not aware that there was any load in the gun. The gun was not to his shoulder at the time, but he was holding it in his hand, and in letting the hammer down it slipped from his hand. The evidence for the defendant on this point is further to the effect that he began crying, and stated that it was an accident, etc. It may be seriously questioned whether negligent homicide was in the case; but we think it is not to be questioned that the evidence is strong to the effect that the...