
    McCRAY v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1911.)
    1.Homicide (§ 304*) — Accidental Homicide —Evidence Warkanting Instructions.
    The evidence showed that decedent and his brother and accused and his brothers had always been on friendly terms, and that decedent and his brothers came to the house of accused’s father on the night of the killing, and remained there until late at night; and that after decedent got up to go home accused and several others began joking about a gun in decedent’s hands, and one of decedent’s brothers had a knife, and was playing with it with one of accused’s sisters, and about the same time accused picked up a gun, which he stated he believed was unloaded, and cocked it, and as he started to let the hammer down it slipped, shooting decedent. Accused had hunted with the_ gun in the morning, and testified that he believed that it was not loaded and when he shot decedent began crying, and stated that it was an accident. Held, that the evidence raised the issue of accidental shooting.
    [Ed. Note. — FOr other cases, see Homicide, Cent. Dig. § 636; Dec. Dig. § 304.*]
    2. Homicide (§ 304*) — Negligent Homicide —Applicability to Evidence.
    The evidence made applicable a requested charge that, on the question of negligence, if accused in1 exercising ordinary care did not know that the gun was loaded, the jury should acquit.
    [Ed. Note. — For other cases, see 'Homicide, Cent. Dig. § 636; Dec. Dig. § 304.*]
    3. Homicide (§ 125*) — Negligent Homicide —Accidental Shooting.
    Pen. Code 1895, art. 45, provides that no act done by accident is an offense, except where there is such carelessness or negligence which the law regards as criminal; and article 46 provides that one laboring under a mistake as to a particular fact, who does an act otherwise criminal, is guilty of no offense. Held that, if accused was playing with a gun and believed it to be unloaded, ánd the hammer slipped from his fingers and caused it to go off and kill another, he was not guilty of any offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 189, 190; Dec. Dig. § 125.*]
    Appeal from District Court, Harrison County; W. C. Buford, Judge.
    George McCray was convicted of negligent homicide, and he appeals.
    Reversed and remanded.
    Beard & Davidson, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of negligent homicide; his punishment being assessed at a fine of $100.

The state’s theory is that the appellant shot and killed Green Edwards without provocation, and without anything being said and done between the parties beforehand, showing'any indication to commit the act, and that it was a sudden, intentional shooting. All of the evidence shows that appellant and the deceased up to the time of the killing had never had trouble or difficulty of any sort, but had been and were very friendly, as were their families. The killing occurred at the house of John McCray, Sr., appellant’s father, where Green Edwards and his brother, Warren Edwards, had gone on a social call and for social pleasure, etc. The theory of the defendant was that the killing was an accident, and defendant’s witnesses all testified to facts tending to establishing that fact. This evidence shows that Warren Edwards, Green Edwards, and the McCrays had always been on the most friendly terms; that the Edwards boys came to the house of John McCray, father of the McCray boys, on the night of the killing, reaching there just after sunset, and remained there, having a pleasant time, until about 11 o’clock at •night, at which time Warren Edwards and Green Edwards were to start home. The McCray hoys were to attend them part of •the way. After Green Edwards had gotten up to start home, appellant and Austin Me-■Cr-ay, and Green Edwards, got to pranking with a gun belonging to and in the hands •of Green Edwards, which he had brought '•to McCray’s with him. Warren Edwards was “pranking and playing with Mary McCray,” a sister of appellant; Warren Edwards had a knife, and, as the witnesses say, was pranking with her with the knife •open, at which time appellant picked up a :gun setting in the corner, which he thought •and believed was unloaded, cocked and held it up in a playful manner; that as he started to let the hammer down it slipped from his thumb, accidentally discharging and killing Green Edwards, who was standing near the door. It is further shown that this gun had been used by appellant in the morning of that day hunting. He thought and believed that he had unloaded the gun when he came home, and was not aware that there was any load in the gun. The gun was not to his shoulder at the time, but he was holding it in his hand, and in letting the hammer down it slipped from his hand. The •evidence for the defendant on this point is further to the effect that he began crying, and stated that it was an accident, etc. It may be seriously questioned whether negligent homicide was in the case; but we think it is not to be questioned that the •evidence is _ strong to the effect that the question of accidental shooting was in the ease. To say that it was not would be to ignore all • the evidence introduced by the defendant.

The court was requested to charge the jury as follows: “On the question of negligence, you are instructed that if the defendant did not know, and in the exercise of ordinary care and caution did not know, the gun was loaded at the time of the killing you will find the defendant not guilty.” This charge was not given, nor any charge by the court submitting this theory of the case. We are of the opinion that the facts called for this charge. The court submitted in a general way a charge on negligent homicide, upon the theory that if the appellant did not use such care and prudence as an ordinarily prudent person would, under the same circumstances, then he would be guilty; and further charged ■the jury that if, however, they should find that the defendant was not negligent — “that is, that his acts and conduct in the respects above set out were such as a person of ordinary care and prudence would have done under the same circumstances — then, if you so believe, you will find defendant not guilty.” While the statute lays down the general rule that the care and prudence, as exercised by the accused, should be such as an ordinary" person, or person of ordinary care and prudence, would exercise, yet, where this was done, and if, as a matter of fact, the jury should find that he did use ordinary care, and that he did. not believe the gun was loaded, they would not find him guilty of negligent homicide. We are of opinion that under the circumstances this charge should have been given. If, as a matter of fact, the appellant did not know the gun was loaded, and thought he had taken the cartridges from the gun, as was always his custom under such circumstances, then appellant was clearly entitled to the charge requested.

He also raises the question that the court failed to charge on the theory of accidental killing, or an accidental discharge of the gun. We are of the qpinion that the facts in this case raise this question squarely. Our statutes expressly provided (article 45, Penal Code) that “no act done by accident is an offense, except in certain -cases specially provided for, where there has been a degree of carelessness or negligence which the law regards as criminal.” Article 46: “No mistake of law excuses one committing an offense; but if a person laboring under a mistake, as to a particular fact, shall do •an act which would be otherwise criminal, he is guilty of no offense.” Now, if appellant was not intending to shoot the gun, but was playing with it, and believing it was unloaded, and the hammer slipped out of his hand and fired the gun, he was entitled to a charge on accident. This question was fully raised by the testimony of appellant. In fact, appellant relied upon this theory. How the question of negligence in the hammer slipping from his hand should cut off appellant from a charge on accidental homicide is not clear. Had he pointed the gun at the deceased and pulled the trigger, believing the gun was unloaded, there might be a question of negligent homicide; but under his theory, it was an accident. Appellant was holding the gun, not pointing it towards deceased, and was letting the hammer down, when it slipped from his hand. This was not negligence, but an accident, if it occurred as stated. The court should not have resolved these matters against the accused, but in his favor.

The judgment is reversed, and the cause remanded.  