Stiles v. State, No. 49001

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: MORRISON; DOUGLAS
• Citation: 520 S.W.2d 894
• Parties: Phillip Ray STILES, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 26 February 1975
• Docket Number: No. 49001

Page 894

520 S.W.2d 894 Phillip Ray STILES, Appellant,
v.
The STATE of Texas, Appellee. No. 49001. Court of Criminal Appeals of Texas. Feb. 26, 1975.
Rehearing Denied March 19, 1975.

Charles Scarborough, Abilene, for appellant.

Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The appeal is from a conviction for murder; the punishment assessed by a jury is imprisonment for life. The appellant urges that the evidence raised the issue of negligent homicide and that the court erred in failing to instruct the jury on the law of negligent homicide in response to his timely special request. The state asserts that the failure to give such a charge was not error because the court submitted a charge to the jury that authorized it to return a verdict of not guilty if it found that the deceased's death was the result of an accident.

Page 896

The difference between accidental homicide and negligent homicide is whether the Act resulting in death was Intentionally or Unintentionally done. The focus is on the accused's act, not on the result of his act. Accidental homicide is the result of an unintentional act while negligent homicide may only result from an intentional act. This distinction was recently noted in Palafox v. State, 484 S.W.2d 739 (Tex.Cr.App.1972). It was there said:

'As stated in Egbert v. State, 76 Tex.Cr.R. 663, 176 S.W. 560, 563 (1915) '. . . negligent homicide is based wholly upon the theory that the evidence must show that there was not intent to kill by an act Intentionally done. Accidental homicide arises only when the act which caused the death was Unintentionally done . . .' (emphasis added).'

And, in Harris v. State, 150 Tex.Cr.R. 38, 198 S.W.2d 264 (1946), the difference between an accidental killing and negligent homicide was explained as follows:

'An accidental killing arises when the act which causes the death was unintentionally done . . .

'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.'

Another difference is that a jury finding of accidental homicide results in an acquittal, while a jury finding of negligent homicide results in the jury or the court assessing punishment within the range provided by law.

The appellant was taking care of his children while his wife was in the hospital. He had bathed the child that died and her four year old sister. On direct examination he testified:

'I picked the child up, I held her up about eye level, and I kissed the child on the neck, and then with my hands I let her drop on the bed as I turned around to get a diaper to dress the child. As I was reaching down to get a diaper then I heard what must have been her hit the wall. And as I turned around I seen her falling on the floor head first.'

The appellant said that he had dropped the baby on the bed on several other occasions because it seemed to stop her from crying. During the direct examination the appellant made no assertion that the baby's death resulted from an accident or from an unintentional act. On cross-examination the prosecutor asked the appellant the following questions:

'Q. Your explanation for these injuries that the doctors have talked about here is that in one single motion you lifted the child up to ey level and dropped it on the bed. I gathered from your testimony that you're attempting to say that the baby bounced off the bed against the wall and then fell from the wall down onto the floor where these injuries occurred, is that your testimony?

'A. Yes, sir.

'Q. And you're telling the Jury that this is completely accidental?

'A. Yes, sir. I had no intention whatsoever of causing harm to my child. No harm whatsoever in trying to kill her, or murder her, or whatever the case may be. It never entered my mind.'

The appellant timely made written requests that charges on negligent homicide and accidental death be submitted to the jury. The court submitted the specially requested charge on accidental death, but the court refused to submit the specially requested charge on negligent homicide. Although the requested charge on negligent homicide was not a correct charge, it was sufficient to call the trial court's attention to the omission in the court's

Page 897

charge, and no other exception or objection to the court's charge was necessary to preserve the error. Art. 36.15, Vernon's Ann.C.C.P.

The state argues in its brief that 'appellant interposed the defense of accident which was properly submitted to the jury. Having done so he was not entitled to a charge on negligent homicide.' The state cites numerous authorities which it says support this proposition. It would appear that the state rather than the appellant attempted to set up a defense of accident; however, this is unimportant to the decision of the case.

The cases relied upon by the state in support of its position that it was unnecessary to give the charge on negligent homicide because the charge submitted on accident was sufficient are Simmons v. State, 145 Tex.Cr.R. 619, 170 S.W.2d 742 (1943); Taylor v. State, 145 Tex.Cr.R. 158, 166 S.W.2d 713 (1942); Combs v. State, 52 Tex.Cr.R. 613, 108 S.W. 649 (1908); Allen v. State, 141 Tex.Cr.R. 94, 146 S.W.2d 384 (1940); Babin v. State, 149 Tex.Cr.R. 339, 194 S.W.2d 563 (1946); Shelton v. State, 367 S.W.2d 867 (Tex.Cr.App.1963); Beasley v. State, 171 Tex.Cr.R. 115, 346 S.W.2d 123 (1961); Garner v. State, 24 S.W. 420 (Tex.Cr.App.1893); Becknell v. State, 47 Tex.Cr.R. 240, 82 S.W. 1039 (1904); Joy v. State, 57 Tex.Cr.R. 93, 123 S.W. 584 (1909), and Palafox v. State, supra.

When the cases cited and relied on by the state are carefully considered the evidence in none of them except Joy v. State, supra, and possibly Combs v. State, supra, raised the issue of negligent homicide. Therefore, a charge on negligent homicide was not required. The language used in some of those cases is misleading if it is interpreted to mean that a charge on accidental homicide would be sufficient and a substitute for a charge on negligent homicide in a case where the facts raise the issue of negligent homicide.

In Simmons v. State, supra, it was the defendant's contention that when he struck the deceased over the head with a pistol it accidentally fired and that he did not even know the pistol had discharged until after he had placed it behind a counter. The trial court gave a charge on accidental homicide. This court said:

'Appellant, for the first time, claims in his brief that he was entitled to a charge on negligent homicide and in support of his contention he cites the case of Barnes v. State, supra (145 Tex.Cr.R. 179, 167 S.W.2d 197 (1943)). In that case, as in this one, no charge on negligent homicide was given or requested. . . . It is obvious that the reversal of the Barnes case was predicated upon the court's failure to give an affirmative instruction on the defendant's intent and not because the court had failed to charge on the law of negligent homicide. The other cases cited by appellant likewise do not sustain his contention.'

In Taylor v. State, supra, the court said that the evidence did not raise the issue of negligent homicide and that the trial court did not err in refusing to submit such a charge. The defendant's defense was that his pistol accidentally discharged. The evidence did raise the issue of accidental homicide.

In Allen v. State, supra, the opinion states:

'There is no evidence raising the issue of negligent homicide. As stated, the appellant was either guilty of murder with malice or he should have been acquitted of murder under his testimony that the killing was an accident.'

In Shelton v. State, supra, the court said:

'. . . In view of our disposition of the case, the facts will not be set forth. We overrule appellant's contention that the charge on accident as given by the court was erroneous and point out that where, as in this case, the defense is accident, there is no occasion to charge on negligent homicide. Beasley v. State,

Page 898

171 Tex.Cr.R. 115, 346 S.W.2d 123, and Simmons v. State, 145 Tex.Cr.R. 619, 170 S.W.2d 742.'

The evidence in Beasley and Simmons did not raise the issue of negligent homicide.

In Babin v. State, supra, the court said:

'According to the State's testimony, the shooting by appellant was deliberate. According to the defense, the shooting--that is, the firing of the gun--was accidental. Under such facts, the full charge...