Salamy v. State, 13705.

• Decision Date: 11 March 1931
• Docket Number: No. 13705.,13705.
• Citation: 37 S.W.2d 1028
• Parties: SALAMY v. STATE.
• Court: Texas Court of Criminal Appeals

37 S.W.2d 1028

SALAMY v. STATE.

No. 13705.

Court of Criminal Appeals of Texas.

March 11, 1931.

State's Rehearing Denied April 22, 1931.

Commissioners' Decision.

Appeal from Hutchinson County Court; H. M. Hood, Judge.

N. F. Salamy was convicted of negligent homicide in the second degree, and he appeals.

Reversed, and prosecution ordered dismissed.

F. H. McGregor, of Amarillo, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is negligent homicide of the second degree; the punishment, a fine of $500.

Appellant made a motion to quash the indictment on the ground that it charged no offense; the specific objection now urged being that negligence was not alleged. An inspection of the indictment discloses that the pleader contented himself with charging that appellant was in the performance of an unlawful act; that is, that he was driving an automobile in excess of 20 miles per hour on a street within an incorporated city. Nowhere in the indictment is it charged that there was negligence and carelessness on the part of appellant.

Article 1231, Penal Code, defines negligent homicide in the first degree as follows: "Whoever in the performance of a lawful act shall by negligence and carelessness cause the death of another is guilty of negligent homicide of the first degree. A lawful act is one not forbidden by the penal law and which would give no just occasion for a civil action.

Article 1239 of the Penal Code provides: "Negligent homicide of the second degree can only be committed when the person guilty thereof is in the act of committing or attempting the commission of an unlawful act."

An unlawful act is defined in article 1240, Penal Code, as follows:

"1. Such acts as by the penal law are called misdemeanors; and

"2. Such acts, not being penal offenses, as would give just occasion for a civil action."

Article 1238, Penal Code, reads as follows: "The definitions, rules and provisions of the preceding articles of this chapter, with respect to negligent homicide of the first degree, apply also to the offense of negligent homicide of the second degree, or such as is committed in the prosecution of an unlawful act, except when contrary to the following provisions."

In Flynn v. State, 43 Tex. Cr. R. 407, 66 S. W. 551, Judge Henderson, speaking for the court, said: "Our statute defines negligent homicide of the second degree as a homicide committed by negligence of the party doing it, while such party was in the performance of an unlawful act, the same being within the category of misdemeanors, or, such act not being a penal offense, would give just occasion for a civil action. It also provides that the homicide must be the consequence of the act done or attempted to be done, and there must be no apparent intention to kill."

In Van Arsdale v. State, 94 Tex. Cr. R. 169, 249 S. W. 863, 864, Judge Lattimore used language as follows: "The elements of negligent homicide in the second degree thus appear to be charged, i. e., a homicide by the act of appellant; that such homicide resulted from his carelessness and negligence; the apparent danger of causing death; the lack of an intent to kill; and that at the time of such homicide appellant was engaged in an unlawful act."

In Harr v. State, 98 Tex. Cr. R. 1, 263 S. W. 1055, 1056, Judge Lattimore, speaking for the court, used this language: "Four counts were submitted to the jury, each charging negligent homicide in the second degree; that is, homicide by negligence in the performance of an unlawful act."

Form No. 508, Willson's Texas Criminal Forms (...