Sykes v. State, 38932
| Decision Date | 19 January 1966 |
| Docket Number | No. 38932,38932 |
| Citation | 399 S.W.2d 349 |
| Parties | Samuel Lewis SYKES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
John W. O'Dowd, John M. Ille, Houston, for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Gene D. Miles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
Tried upon an indictment alleging murder with malice of Joyce Jones by shooting her with a gun, appellant was found guilty of the lesser included offense of negligent homicide of the second degree (Art. 1243) P.C.) and his punishment was assessed by the jury at 3 years in jail.
The killing occurred in 'The Celebrity Room,' a cafe. All of the evidence shows that Joyce Jones, an 18 year old Negro girl, died as the result of a gunshot wound inflicted by a bullet from a .25 caliber automatic pistol in the hand of appellant.
Dr. Bucklin, Associate Medical Examiner for Harris County, testified that the bullet entered the left side of the chest; went through the fourth rib and into the left lung; perforated the heart; entered the right lung and was recovered in the right pleural cavity. He expressed the opinion that the gun was not touching the skin, but was some six inches away when fired, and that a person after being shot in such manner would live only 2 or 3 minutes.
Appellant's version was that, after he had been called back and told that he owed an additional two cents for his chili, he pulled out everything in his right trousers pocket, including the pistol, a key chain with a rabbit's foot on it and several nickels, and that after he put a nickel on the counter and was waiting for his change the gun 'went off'. He testified that he did not intend to shoot anyone; that he did not know how the gun fired and that he had not pulled the trigger.
He denied having earlier approached another girl in the cafe, also named Joyce, or that he threw his arm around her shoulder, displayed a gun or told her that if she did not let him feel her breasts he was going to shoot her, or that he exhibited a gun in the recreation room after talking to a girl named Daisy, as the state's witnesses testified.
The court did not err in submitting to the jury an instruction on negligent homicide of the second degree. Abell v. State, 109 Tex.Cr.R. 380, 5 S.W.2d 139, 61 A.L.R. 318; Chant v. State, 73 Tex.Cr.R. 345, 166 S.W. 513; Taylor v. State, 145 Tex.Cr.R. 158, 166 S,.w.2d 713.
The charge given was substantially the same as that approved in Brown v. State, Tex.Cr.App., 376 S.W.2d 577.
The claims of error presented as ground for reversal all relate to the portion of the charge which followed the submission of murder with malice aforethought which (omitting the full definition of negligent homicide of the second degree and the punishment provided for such offense in Art. 1243 P.C.) reads:
'You are further charged, however, that if you believe from the evidence beyond a reasonable doubt that the defendant, on or about the 20th day of October, 1964, unlawfully shot and killed Joyce Jones by then and there shooting her with a gun, as charged by the indictment herein, but you have a reasonable doubt as to whether he did so (if he did) with malice aforethought, then you will resolve such doubt, if any, in favor of the defendant and next consider whether this defendant be guilty of negligent homicide in the second degree.'
Here follows the definition.)
'Now, therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Samuel Lewis Sykes, heretofore on or about the 20th day of October, A.D. 1964, in Harris County, Texas, was then and there engaged in the performance of an unlawful act, to-wit, carrying a pistol on or about his person in the County and State aforesaid, and did then and there while so engaged, by negligence and carelessness cause the death of Joyce Jones, by then and there negligently causing and permitting said pistol (gun) to discharge a bullet, which then and there struck the body of the said Joyce Jones, and from which injuries from said pistol the said Joyce Jones then and there died; and that at the time said pistol was discharged, the defendant had no apparent intention to kill the said Joyce Jones, and you further find from the evidence beyond a reasonable doubt, that at the time said pistol was discharged, there was an apparent danger of causing the death of said Joyce Jones, which the defendant knew or should have known, in the exercise of due care and caution, such as a reasonably prudent person would or should have used under the same or similar circumstances, then you will find the defendant guilty of the offense of negligent homicide in the second degree, and assess his punishment at imprisonment in the County Jail for a period of time not to exceed three years or by a fine not to exceed three thousand dollars ($3,000.00).
'But if you do not so find and believe from the evidence or if you have a reasonable doubt thereof then you will acquit the defendant and say by your verdict 'not guilty'.'
'You are instructed that no act done by accident is an offense, except where there has been a degree of carelessness or negligence which the law regards as criminal.
'Therefore, if you believe from the...
To continue reading
Request your trial
-
Evans v. State
...11 Terry 83, 123 A.2d 461; Lash v. State, 97 Ga.App. 622, 103 S.E.2d 653; France v. Commonwealth (Ky.), 323 S.W.2d 868; Sykes v. State (Tex.Cr.App.), 399 S.W.2d 349; State v. Shipley, 259 Iowa 952, 146 N.W.2d 266; State v. Jiminez, 93 Idaho 140, 456 P.2d 784; State v. Lee, 255 S.C. 309, 178......
-
Palafox v. State
...occurred during the performance of a lawful or unlawful act. See, De Mary v. State, 423 S.W.2d 331 (Tex.Cr.App.1968); Sykes v. State, 399 S.W.2d 349 (Tex.Cr.App.1966); Stout v. State, 460 S.W.2d 911 (Tex.Cr.App.1970).The law of negligent homicide often presents troublesome legal questions. ......
-
Tello v. State
...risk. Lopez v. State, 630 S.W.2d 936, 940 (Tex.Crim.App.1982). Accident is not a defense to negligent homicide. Sykes v. State, 399 S.W.2d 349, 352 (Tex.Crim.App.1966). Ignorance of the law is not a defense to its violation. See, e.g., Almanza v. State, 365 S.W.2d 360, 362 The facts of this......
-
Montana v. State, No. 01-05-00101-CR (TX 12/8/2005)
...from the ordinary standard of care." Initially, we note that "accident" is not a defense to negligent homicide. Sykes v. State, 399 S.W.2d 349, 352 (Tex. Crim. App. 1966). While it may be true that "if no death had occurred, appellant may have been ticketed and nothing more," it is the deat......