
    CROWDER v. STATE.
    (No. 3825.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1. Homicide <§=340 — Trial—Instructions^Lesser Degbees.
    Although there is evidence supporting a charge of murder, but no evidence of negligent homicide, an instruction submitting that issue is not reversible error, since it is more favorable to the defendant than the evidence justifies.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dee. Dig. <§= 340.]
    2. Indictment and Information <§=191 — “Mtjbdeb” — Included Offenses.
    Under Code Or. Proe. 1911, art. 771, providing that the jury may acquit of the offense charged and convict of an included offense, and article 772, providing that “murder” shall include all lesser culpable homicides and assault with intent to commit murder, negligent homicide is included in the offense of murder, and conviction of that offense may be had under an indictment for murder.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 265, 604^621; Dec. Dig. <§=19L
    For other definitions, see Words and Phrases, First and Second Series, Murder.]
    3. Criminal Law <@=935 — New Trial — When Geanted.
    Although one accused of murder was convicted of the included offense of negligent homicide, as to which there was no evidence, he was not therefore entitled to a new trial under Code Cr. Proc. 1911, art. 837, subd. 9, providing for new trial in felony cases, where the verdict is contrary to the law and evidence, but that a conviction of a lesser included offense of the same nature as that proved shall not be deemed to be contrary to the law and evidence.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §(j 2193, 2194, 2297, 2298, 3068; Dec. Dig. <@=935.]
    4. Homicide <§=156— Trial — Evidence—Admissibility.
    In a prosecution for murder, evidence of a deputy sheriff and another acquainted with firearms that the weapon used took only a certain cartridge was admissible on the question of defendant’s intent in firing the weapon.
    [Ed. Note. — For other cases, see Homicide. Cent. Dig. §§ 286, 2S7; Dec. Dig. <§=>156.J
    5. Homicide <§=174^-Trial — Evidence—Ad - ' MISSIBILITY.
    Where the defendant claimed the killing was accidental, and showed his expressions of grief as res gestee, it was competent for the state in rebuttal to show expressions to other witnesses to the effect that they might be out after him and break his nock, and he did not “give a-” if they did, though made some time after the killing;
    [Ed. Note.' — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. <§=174.]
    6. Criminal Law <§=3413 — Self-Serving Evidence.
    It is not error to exclude testimony of the parents of one accused of murder as to his acts and statements some time after the killing, where all res gestee evidence was admitted; the excluded evidence being self-serving.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. <@=3413.]
    7. Criminal Law <§=730 — Trial — Conduct of Counsel — Instructions.
    Error in admitting improper argument of the prosecuting attorney is cured by instructions to disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <@=730.]
    Davidson, J., dissenting.
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    Gabe Crowder was convicted of negligent homicide of the first degree, and he appeals.
    Affirmed.
    L. J. Truett, of McKinney, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted and tried for murder. He was convicted of negligent homicide of the first degree, and his punishment assessed at one year in jail.

Appellant correctly states that the theory of the state was that appellant was guilty of murder or of said degree of negligent homicide. His defense was that the killing was simply accidental. The court correctly submitted his defense in a charge not complained of. The jury found against him on evidence which fully justified their finding on this issue.

The court submitted the issue of murder and also said degree of negligent homicide in correct charges, which are in no way complained of by appellant. Neither did appellant at the time, nor does he now, as we understand, complain that the court should not have submitted negligent homicide at all; but he now claims that the evidence did not raise the issue of negligent homicide. He concedes and we think there can be no question but that the evidence raised the issue of murder, and the verdict of the jury on that issue would have been sustained by the evidence. There can be no question, and as we understand appellant does not controvert it, that under an indictment and trial for murder, when the court by his charge submits for a finding an issue more favorable to him than the law and evidence would justify, he has no just cause to complain, and, even though the evidence does not justify the submission of the issue, it is in his favor and presents no reversible error. Christian v. State, 71 Tex. Cr. R. 574, 161 S. W. 101, and cases there cited. Especially would this be the case under our recent statute, where appellant at the time made no objection whatever to the court’s charge submitting such issue in his favor.

Neither can there be any question, both under our statute (articles 771, 772, C. C. P.) and uniform decisions of this court, that an indictment and trial for murder includes all the lesser degrees of culpable homicide, which unquestionably includes, among others, negligent homicide of both degrees.

However, after the trial and conviction herein, with the indictment, evidence, and charge of the court as herein recited, for the first time after the trial and conviction he contended, and now contends, that as he was acquitted of murder, and found guilty of negligent homicide, there was no evidence raising the issue of negligent homicide. Hence he contends he is entitled to a new trial on that ground. In the view we take of this case under our statute (article 837, subdiv. 9, C. C. P.), which prescribes;

“New trials in cases of felony shall be granted for the following causes and for no other: * * * (9) Where the verdict is contrary to law and evidence. A verdict is not contrary to the law and evidence, within the meaning of this provision, where the defendant is found guilty of an offense of inferior grade to, but of the same nature as, the offense proved”

—and said articles 771, 772, above cited, where it is enacted:

“Where a prosecution is for an offense consisting of different degrees, the jury may-find the defendant not guilty of the higher degree (naming it), but guilty of any degree inferior to that charged in the indictment or information.”
“The following offenses include different degrees : (1) Murder, which includes all the lesser degrees of culpable homicide. * * * ”

—his contention is unfounded, We have carefully read and studied the' evidence in this case. We think it certain, without reciting it, that the evidence did raise the issue of negligent homicide; but, whether it did or not, it is the settled law of this state by a long line of decisions that appellant would be entitled to no new trial. This court, speaking through Judge Davidson, in Pickett v. State, 43 Tex. Cr. R. 6, 63 S. W. 325, said:

“Other cases are numerous to the effect that, where there is evidence of a higher grade of offense, a conviction will not be disturbed for the inferior degree, though there was no testimony showing the inferior degree.”

In the case of Gray v. State, 61 Tex. Cr. R. 459, 135 S. W. 1179, the court, through Judge Ramsey, in an exhaustive and elaborate opinion, wherein he cited, quoted from, and discussed the previous decisions of this court on that question, held in accordance with Judge Davidson in the Pickett Case; supra. In that opinion of Judge Ramsey is also quoted and approved an exhaustive and elaborate opinion by Judge Brooks, for this court, in Cornelius v. State, 54 Tex. Cr. R. 173, 112 S. W. 1050, wherein Judge Brooks also cited, discussed, quoted from, and approved the previous decisions of this court so holding. We think it unnecessary to again discuss this question. We regard it as settled against appellant’s contention. Hickey v. State, 62 Tex. Cr. R. 578, 138 S. W. 1051; Gray v. State, supra; Cornelius v. State, supra; Burnett v. State, 53 Tex. Cr. R. 515, 112 S. W. 74; Pickett v. State, supra; Chapman v. State, 53 S. W. 103; Conde v. State, 35 Tex. Cr. R. 104, 34 S. W. 286, 60 Am. St. Rep. 22; Scroggins v. State, 32 Tex. Cr. R. 74, 22 S. W. 45; Powell v. State, 5 Tex. App. 234; Templeton v. State, 5 Tex. App. 407; Brown v. State, 50 S. W. 354; Fuller v. State, 30 Tex. App. 562, 563, 17 S. W. 1108; High v. State, 54 Tex. Cr. R. 333, 112 S. W. 939.

The pistol with which the killing of the deceased by appellant was done was produced, identified, .introduced in evidence, examined, and testified about by several witnesses, among others by Sam Welch, a deputy sheriff, who among other things testified that said pistol shoots only a 44 Smith & Wesson American cartridge. He showed that he had made many tests with the pistol, testing it with other cartridges and with the said make only. It is unnecessary to detail his evidence. It was on the issue of attempting to show, and tended strongly to do so, that the pistol at the time it was fired and killed deceased could not have been accidentally fired, as claimed by appellant, but that it must have been intentionally fired by him. Thereupon the state introduced Mr. Grant, who among other things, as shown by the qualification by the court of appellant’s bill of exceptions on that subject, testified that he had handled firearms about 20 years and was well familiar with the cartridges made in America and foreign countries, and that the Smith & Wesson 44 American cartridge was the only shell on the market that can be discharged in said pistol that he knew of or that was shown in any catalogue. We think this testimony was admissible on said issue, and that the court did not err in not excluding it upon appellant’s motion after it was introduced.

With the issues as stated, the state introduced its testimony on said theories of the state and rested. Appellant introduced his testimony on the claim that the pistol was fired simply accidentally, and his res gestee acts, statements, and conduct to the effect that he cried and gave expressions to his grief, and claimed that the killing was accidental. The state in rebuttal, on both of its theories, but especially on that of murder, was correctly permitted to have the witness York, over defendant’s objections, testify in effect that some time after the homicide, on the same night and after many intervening circumstances and considerable time, the witness saw defendant out in the lane in front of the latter’s house and heard defendant say:

“Well, they may be out after me to-night, or they may not; they may send me to the penitentiary, or they may break my damned neck; X do not give a God damn if they do.”

The court correctly held that this testimony was admissible, as well as that the state could ask, and did. appellant, while he was testifying, if he did not make said statement to York, or in his hearing; he denying the substance of what York testified.

The court did not err in excluding the testimony of appellant’s father and mother to the effect that after the killing, and between the time of appellant’s res gestee acts, conduct, and statement and the time that York testified, appellant said to Mm what he did, because we think their testimony was not res gestee, but self-serving by appellant. Besides this, the court has shown by his qualification of the bill, permitted not only appellant, but all other witnesses he offered, being several, to testify to his said res gestae acts, statements, and conduct, and we think it certain that he did make such res gestae statements, and his action and conduct at the time testified by him and his witnesses was not controverted. They were practically established without dispute.

Complaint is made of the county attorney’s argument in one particular before the jury, and what he said when appellant objected thereto. The court sustained his objections, and instructed the jury not to consider the same, This presents no reversible error. Mooney v. State, 176 S. W. 52, and eases there cited.

The judgment is affirmed.

DAVIDSON, J.

I cannot concur. If negligent homicide is not in the ease, this conviction is clearly erroneous. If that question was not an issue, the jury having acquitted of murder, the accused was entitled to an acquittal. The jury were authorized to and did convict, under such state of case, of an offense not in the record. I may write later, if time affords opportunity. 
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