Simmons v. State

• Decision Date: 30 November 1927
• Docket Number: (No. 11094.)
• Citation: 3 S.W.2d 449
• Parties: SIMMONS v. STATE.
• Court: Texas Court of Criminal Appeals

3 S.W.2d 449

SIMMONS v. STATE.

(No. 11094.)

Court of Criminal Appeals of Texas.

November 30, 1927.

State's Rehearing Denied March 14, 1928.

Commissioners' Decision.

Appeal from District Court, San Patricio County; T. M. Cox, Judge.

M. K. Simmons was convicted of murder, and he appeals. Reversed and remanded.

B. D. Tarlton, of Breckenridge, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, murder; punishment, 20 years. Appellant was a state game warden. In company with Deputy Game Warden Gates, he visited a ranch of which deceased, Bud Stoner, was foreman for the purpose of securing permission for his brother to hunt on the ranch. Arriving there about dark, he and deceased, Bud Stoner, began drinking. The testimony shows they were very friendly. Gates, Stoner, and appellant left the ranch to go through the pasture to look for "head lighters" — that is, nighttime hunters, who were violating the game laws. Appellant and Stoner continued drinking, Gates not participating. Returning, some banter was exchanged between them about the speed of appellant's car. Appellant in answer began racing his car, finally leaving the road and running into two mesquite trees, which tore the top off the car, and inflicted some injury on appellant. Gates then took the wheel. Going through a gate, witness Gates went to fasten it, and while there heard a shot. Deceased said, "Look out, Simmons, or you will hit me." About three shots were fired. The parties had immediately preceding this been joshing each other. Going back, witness Gates took the pistol away from appellant and threw it away. Deceased said, "I am shot." Appellant said about the time: "Let's get a doctor. I'll get a doctor. Bud did I shoot you? I didn't shoot you, did I, Bud?" Witness Gates phoned for a doctor, who on the road found appellant about a mile from the scene of the difficulty with his car in a ditch, and the engine running wide open. The lights were on. Steam was escaping from the radiator. Appellant had his hands dropped down to his side and made no answer to questions of witness — "didn't even look around" according to witness. Deceased was taken to Corpus Christi, was fully conscious on the road down there, and told witness and his companion that he was shot by a "quirvolo Mexican," interpreted to mean a yellow, dressed-up Mexican. Arriving at the hospital still fully conscious, the state's witness McClendon, a police officer, testified to statements of deceased in part as follows:

"It seems to me that it was Mr. Welder who first asked him (Stoner) if Simmons had shot him. As to how many people were questioning him there, well, Mr. Welder asked some, Mrs. Welder asked some, I asked some, and Dr. Nast asked a few. I couldn't say what he said in reply to Dr. Nast's questions — I don't remember what Dr. Nast asked him, but I know he was talking to him. What did he say in reply to Mrs. Welder's questions? Well, I think she was trying to get him to tell who killed him or who had shot him.

"Q. And he said a Mexican shot him? A. It came up several different times. * * * He (Stoner) at first said that a Mexican had shot him. There was something else said in between there, and I don't know just what it was, but then the question was asked him, `Did Simmons shoot you?' and he said, `Yes.' At the time he made the statement about the Mexican shooting him, the question was asked, I believe, `Do I know him?' and he said, `Yes. There were several developing that, but I couldn't say positively who was asking the questions. It seems to me that it was Mr. Welder that asked the particular question, `Do I know him?' Stoner's reply to that question was, `Yes.' Then the question was asked him, `Did Simmons shoot you?' I do not know who asked him that question, but somebody asked the question, `Did Simmons shoot you?' He (Stoner) just turned over on the operating table on his side and just groaned out, `Oh, hell, yes,' just what he said. * * * After Bud Stoner had said, `Oh, hell, yes,' in reply to the question, `Did Simmons shoot you?' I think the question was propounded to him, `Had you-all ever had any trouble?' and he answered, `A damned argument.' * * *"

The court charged on murder, but submitted no defensive issues except intoxication as a mitigating circumstance. Failure to charge on the issue of negligent homicide was made the subject of timely exception, and is urged on this appeal as error. We think the above evidence unquestionably raised the issue. There appears wholly lacking in the evidence any motive for the killing unless deceased's reference to a "damned argument" may be so construed. The only argument, according to state's witness Gates, seemed to have been with reference to the speed of appellant's car, already referred to. The parties were joking each other up to the very moment of the difficulty. Appellant was maudlin drunk, and deceased practically so, according to Gates. The statements of deceased and his actions after the trouble fail to show any feeling or ill will by him whatever against appellant, and indicate instead a desire to protect appellant. The only flash of a pistol seen by Gates was not towards deceased.

If the pistol of appellant was fired with no apparent intention to kill, but under circumstances making apparent the danger of causing the death of the person killed or some other, the issue of negligent homicide is present in the case. McPeak v. State, 80 Tex. Cr. R. 54, 187 S. W. 754; Sewall v. State, 67 Tex. Cr. R. 105, 148 S. W. 569; Howard v. State, 25 Tex. App. 686, 8 S. W. 929.

The above rule is made plain by the following provisions of the Penal Code:

"To constitute this offense there must be an apparent danger of causing the death of the person killed or some other."

"To bring the offense within the definition of negligent homicide either of the first or second degree, there must be no apparent intention to kill." Arts. 1232 and 1235, P. C.

An ingenious and able brief has been filed by counsel for the state insisting that negligent homicide of the first degree does not exist as an offense because under its definition no state of facts could be proven which would come within its provisions in this: It is defined as a homicide by negligence, happening in the performance of a lawful act; a "lawful act" being defined as one not forbidden by the penal law, and which would give no just occasion for a civil action. Article 1231, P. C. The position is taken that any homicide by negligence gives just occasion for a civil action under our law, and therefore the offense cannot exist. "Lawful act," as used in the Penal Code, we think means the act of any one apart from negligence. If the statute had defined the "negligent performance of a lawful act" as one giving no just occasion for a civil action, the state's contention would probably be sound. Appellant was an officer. He violated no law or legal duty in simply having and firing a six-shooter in an open pasture. Apart from negligence, this act per se gave no right of action for damages. However, we need not rest our decision upon the above reasoning. It finds ample and we think conclusive support in article 1234, P. C., itself, which provides:

"Throwing timbers by a workman from the roof or upper part of the house in a public street or highway, or where a number of persons are known to be around the house, or discharging firearms on or near a public highway other than a street in a town or city in such manner as would be likely to injure persons who might be passing, are examples of negligent homicide of the first degree, in case of death resulting therefrom. If death is caused by the careless discharge of firearms in a public street of a town or city, the offense will be of a higher degree."

These examples of the legislative interpretation of this offense would all be impossible under the state's theory.

Justice Lattimore, in the negligent homicide case of Gribble v. State, 85 Tex. Cr. R. 52, 210 S. W. 215, 3 A. L. R. 1096, uses the following language:

"The act, if any, of appellant which...