
    RODRIGUEZ v. STATE.
    (No. 11292.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    I. Homicide <®=>286(l) — Defendant’s statements that he shot downward without intent to kill raised defense to charges of murder, manslaughter, and negligent homicide which should have been submitted to jury (Pen. Code 1925, art. 1232).
    In prosecution for murder, defendant’s statement that he did not fire in direction of deceased, but fired downward with no intention of killing any member of deceased’s party, but with sole purpose of frightening deceased and his companions, raised a defense which, if believed by jury, would have entitled defendant to an acquittal of murder, manslaughter, or negligent homicide; there being no apparent danger of killing deceased or his companions in firing shot, as required by Pen. Code 1925, art. 1232, for negligent homicide, and' such defense should have been submitted to jury.
    2. Criminal law <⅜=?772(6) — Court must submit defense raised by evidence in affirmative way.
    Where evidence raises defensive theory in an affirmative way, it is incumbent on court to submit it.
    Commissioners’ Decision.
    Appeal from District Court, Bee County; T. M. Cox, Judge.
    Secondino Rodriguez was convicted of murder, and he appeals.
    Reversed and remanded.
    I-I. S. Bonham, of Beeville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment confinement in the penitentiary for 25 years.

The deceased, Jim Hyman, his brother, John Hyman, and Rufus O’Brien were hunting .at night with dogs. Deceased was carrying a lantern, and John Hyman was leading the dogs with a chain. The parties had crossed through a field into the public road. Before reaching the road they saw two cars coming. As they crawled through the fence the cars came by. The dogs pulled to one side, and John Hyman jerked them back, saying, “Come in here, you s-s of b-s! Them cars will run over you.” The two cars went around a curve and stopped. Five Mexicans got out of the cars, among them being appellant, and came -back to the point where deceased and his companions were. One of the Mexicans asked deceased what he had said to him, and deceased replied, “I said nothing to you.” The Mexican who made the statement to deceased had a knife in his hand. John Hyman picked up a rock and told the Mexican not to strike deceased with the knife. Thereupon appellant drew out a six-shooter and threw it- in the face of John Hyman, and said: “You s- of a b-, run!” Deceased and his companions ran and crawled through the fence into the field. After getting into the field, deceased said to the Mexicans: “You s-s o-f b-s, go on and leave us alone! We’re on our own side of the fence and not bothering you.” The five Mexicans, including appellant, thereupon started back to their cars. Appellant, after going a short distance, stopped, turned, and shot deceased. Deceased was wounded just above the hip bone on the left side, the bullet penetrating the bladder. 1-Ie died from the wound. The fbregoing facts were testified to by state’s witnesses. ■ ■

Appellant testified that at the time he stopped his ear he understood deceased and Ms companions to tell Mm to stop; that he heard some cursing in the direction of deceased and his companions which caused him to become nervous;, that he saw one of the white boys with upraised hand making a motion as if to hit his (appellant’s) brother; that he (appellant) pointed a gun at him and said, “Run, you s-of a b-”; that when the white boys got into the field they began cursing; that he shot down toward the ground in an endeavor to scare them; that he had no intention of shooting or hitting either of them; that at the time he fired the shot he was 60 or 65 feet from deceased and his companions and couldn’t see them very well; that he had understood the white boys to say after they got in the field, “Now we are on our own side of the fence and you s-s of b-s go on and let us alone”; that he was a little bit frightened before he fired the shot; that he did not know whether the boys had a gun with them and did not know but what they would shoot at him. In referring to the fatal shot, appellant said: “Then I turned around and shot, but I shot down, not towards the boys.”

The court submitted instructions covering murder, manslaughter, self-defense, and negligent homicide of the second degree. Appellant timely objected and excepted to the court’s charge on the ground that it failed to submit to the jury one of his affirmative defenses, it being his contention that the court should have instructed the jury to acquit him if they had a reasonable doubt that he fired the shot downward and not toward deceased and his companions and had no intention of killing any member’of the party. It is noted that appellant contended that he did not fire in the direction of deceased and his companions, but fired downward with no intention of killing any member of the party, but with the sole purpose of frightening deceased and Ms companions. If such facts had been believed by the jury, appellant would have been entitled to' an acquittal of the charges of murder and manslaughter. To sustain a conviction of negligent homicide, an apparent danger of causing the death of deceased or some other person must appear. Article 1232, P. 0. 1925; Haynes v. State (Tex. Cr. App.) 224 S. W. 1100; Talbot v. State, 58 Tex. Cr. R„ 324,125 S. W. 906; Howard v. State, 25 Tex. App. 686, 8 S. W. 929. Appellant’s testimony, in our opinion, if believed by the jury, would have warranted the conclusion that in firing the shot there was no apparent danger of killing deceased or his companions. If he did not fire in their direction and the bullet was deflected from its course by some object, it would seem that such facts would give support to the theory that the danger of killing was not apparent. Such theory might further find support in the fact that the wound was somewhat rough at the point of entrance. As we view the evidence, appellant’s statement to the effect that he did not shoot toward the parties, but downward with no intention of killing them, raised a defense to the charges of murder, manslaughter, and negligent homicide. Where the evidence raises the defensive theory in an affirmative way it is incumbent upon the court to submit it. Dodson v. State (Tex. Cr. App.) 300 S. W. 934; Escobedo v. State, 88 Tex. Cr. R. 277, 225 S. W. 377.

The other questions presented are not discussed, as they are not likely to occur on another trial of the ease.

For the error discussed, the judgment is reversed and the cause remanded.

PER OUB.IAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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