McPeak v. State

• Decision Date: 21 June 1916
• Docket Number: (No. 4125.)
• Parties: McPEAK v. STATE.
• Court: Texas Court of Criminal Appeals

187 S.W. 754

McPEAK v. STATE.

(No. 4125.)

Court of Criminal Appeals of Texas.

June 21, 1916.

Appeal from District Court, Floyd County; R. C. Joiner, Judge.

Jim McPeak was convicted of murder, and appeals. Reversed and remanded.

Martin, Kinder, Russell & Zimmerman, of Plainview, and T. F. Houghton, of Floydada, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of murder, the jury assessing his punishment at six years' confinement in the penitentiary. This is not the lowest penalty, five years being the minimum.

Appellant and deceased had been friends from early boyhood, some of the testimony showing about 30 years. This continued to the moment of the firing of the pistol which killed the deceased. The state's contention is that the killing was murder; appellant's that it was accidental homicide. There is testimony, it is claimed, suggesting negligent homicide. The court submitted murder, negligent homicide in the second degree, and accidental shooting. Appellant contends the issue of murder is not in the case. There is considerable strength and cogency in this contention. It is also contended that, if negligent homicide is in the case, it is of the first degree and not of the second. It is further contended that the court erred in not submitting negligent homicide of the first degree. The further contention is made the court erred in submitting the issue of accidental homicide to such an extent that it deprived the defendant of a fair hearing before the jury on that issue.

The state's theory was that appellant was drinking, and had gone to his friend Bishop, who was in some way connected with a drug store, and wanted Bishop, deceased, to give him a drink of whisky or alcohol, which Bishop promised as soon as he closed the store for the night. As Bishop was preparing to close his business house, appellant was sitting in a chair. His pistol was discharged, striking Bishop in the leg, producing hemorrhage from which he died. Some of the witnesses thought that a firecracker had been exploded. No one saw the pistol when it was fired. No eyewitness saw appellant have the pistol, and the facts justifying the conclusion that he had the pistol and the conclusion that he fired the pistol is the fact that it was fired, Bishop was struck in the leg, appellant's statement that he had a pistol and that it was discharged accidentally. Appellant was sitting in a chair, and Bishop either standing still or walking about the room. Appellant's statement with reference to firing the pistol was that he had the pistol in his left-hand pants pocket, and in his sitting position he was afraid the pistol would fall out. He reached down and got it with a view of transferring it to his inside right-hand coat pocket; that in doing so it caught on his coat or something about his person and was falling, and in catching at it it struck the chair and accidentally discharged. He stated he had no ill will towards Bishop, who was his life-long friend, and would not have hurt him. He also testified that it was an automatic pistol, and that he thought and believed that the hammer was on the safety guard and it could not be discharged. The evidence further shows that it takes but slight pressure to remove the hammer from the safety guard to place the pistol in a shooting condition; that it could not be shot while on the safety guard. He was not aware that the pistol was in such condition that it could be shot at the time he was transferring the pistol from one pocket to the other, but thought it was not, and that he was so transferring it to avoid the falling on the floor and a subsequent arrest for carrying the pistol. Without going further into details, this, we think, is a sufficient statement of the case to bring in review the law questions.

There is a bill of exceptions reserved to the action of the court permitting testimony to the effect that some time prior to the tragedy, but the same day, appellant, at the request of his friend Honea, had gotten a bottle of bitters for Honea. Various objections were urged to this. This testimony was not admissible. It is not shown to have had any connection with this transaction, was between appellant and third parties, and in no way connected with the homicide or other events which brought about the unfortunate tragedy. A number of cases are cited which sustain appellant's contention. Hodges v. State, 73 Tex. Cr. R. 378, 166 S. W. 512; Roquemore v. State, 59 Tex. Cr. R. 568, 129 S. W. 1120; Campbell v. State, 37 Tex. Cr. R. 572, 40 S. W. 282. Other cases might be cited, but we think these are sufficient.

A number of exceptions were reserved to the court's charge and special requested instructions refused which tended to present what appellant thought to be correct propositions of the law, that accidental homicide was in the case is not to be questioned, and the court recognized this by charging the jury as follows:

"I further charge you that if you believe from the evidence, or have a reasonable doubt, that defendant fired the pistol accidentally, that is, without intending to do so, and thereby killed the said S. D. Bishop, and if you believe that he did not intend to kill the said S. D. Bishop, and that defendant was not guilty of negligence and carelessness in firing said pistol, then you will find the defendant not guilty."

This is the only charge the court gave with reference to this phase of the law. Without taking up either the special instructions or the reasons urged why this charge is not correct, we will say, where an issue is in the case favorable to the accused, he should have that issue submitted in an affirmative way untrammeled by conditions which are unfavorable to him and requiring the jury before they give him the benefit of his defense they must find other facts which, if true, would deprive him of his affirmative defensive charge. The court gave a separate charge to the jury on negligent homicide and carelessness in that connection.

If the jury should believe the testimony of appellant, he should have been acquitted on the ground of accidental discharge of his pistol, and, whether they should believe it or not, he was entitled to have the matter fairly and squarely presented to the jury untrammeled by other conditions. The court had given the jury a charge on negligent homicide of the second degree. This question, as contended by appellant, has been decided in quite a number of cases, some of which are here cited: Hamilton v. State, 64 Tex. Cr. R. 175, 141 S. W. 966; McCray v. State, 63 Tex. Cr. R. 522, 140 S. W. 442; Chant v. State, 73 Tex. Cr. R. 345, 166 S. W. 513; Egbert v. State, 176 S. W. 560; Windham v. State, 173 S. W. 661; Williams v. State, 45 Tex. Cr. R. 218, 75 S. W. 859; Miller v. State, 52 Tex. Cr. R. 72, 105 S. W. 502; Maldonado v. State, 70 Tex. Cr. R. 205, 156 S. W. 647. Upon another trial the law of accidental homicide will be submitted in accordance with the statute unfettered and untrammeled with conditions requiring the jury to find that negligent homicide was not in the case before they could acquit on the accidental theory. The court charged the jury, if they should find there was no apparent intention on the part of the defendant to kill the deceased, and further that at the time of the shooting the defendant was handling the pistol with which deceased was killed in such a negligent manner as that it might be...