
    ABELL v. STATE.
    (No. 11499.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    1. Homicide <⅜3309(4) — Evidence of policeman’s discharging pistol in direction of deceased, whom he was trying to apprehend, raised issue of. negligent homicide, and instruction thereon was proper.
    Evidence that defendant jpoliceman intentionally discharged his pistol in direction of deceased, whom he was trying to apprehend, held not to raise issue of accidental killing, but clearly brought homicide within definition of negligent homicide, by firing when apparent danger of causing death appeared, though without intention to kill, and hence instruction on negligent homicide in connection with instruction on accidental killing was not erroneous, as failing to instruct on accidental homicide without any question of negligence.
    2. Homicide <g=c34 — Police officer, if firing in direction of deceased when.apparent danger of causing death appeared, held guilty of “negligent homicide,” though not intending to kill deceased.
    Police officer, if shooting in direction of deceased whom he was trying to apprehend at time when apparent danger of causing death of deceased appeared, was guilty of “negligent homicide,” although he did not intend to hill deceased.
    [Ed. Note. — For other definitions, see Words and Phraseá, First and Second Series, Negligent Homicide.]
    3. Criminal law <g=o65I(I), 1166½ (f) — Permitting jury to view scene of crime is error, and is reversible, if inspection could militate against accused.
    Practice of permitting jury to view place where crime was committed is condemned in state, and if jury received evidence from inspection of ground that could militate against rights of accused, and such matter was properly before Court of Criminal Appeals for review, reversal of case would necessarily result.
    4. Criminal law <@=»l 144(1») — Appellate court will not presume affidavits attached to motion for new trial were considered, or were alone considered, where order overruling motion recites evidence was heard.
    When order of court overruling motion for new trial recites that evidence was heax-d on objection, it will not be presumed on appeal that affidavits attached to motion were considered, or that they were alone considered.
    5. Criminal law 144(18) — Denial of new trial is presumed correct, and based on sufficient evidence, where record indicates court heard evidence.
    Where record indicates that court heard evidence on issue, Court of Criminal Appeals must presume that trial court’s action in overruling motion for new trial was coi*rect, and that trial court acted on evidence sufficient to justify its action.
    6. Criminal law <§=>1144(18) — Order overruling new trial, reciting evidence was heard on jury’s misconduct, is presumed correct, where no evidence was brought up for review.
    Where order of court overruling motion for new trial recited that evidence was heard on question of misconduct of jury in viewing place of crime, and no such evidence was brought before Court of Criminal Appeals, either by bill of exceptions or statement of facts, Court of Criminal Appeals, must presume that court’s action in overruling new trial was correct. ■
    Commissioner’s Decision.
    Appeal from District Court, Wilbarger County; Robert Cole, Judge.
    Houston Abell was convicted of negligent homicide in the first degree, and he appeals.
    Affirmed.
    Storey, Leak & Storey, of Vernon, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Under an indictment charging murder, appellant was convicted of negligent homicide of the first degree, and his punishment assessed at six months’ confinement in the county jail.

Appellant contended in the trial court, and now contends, that the evidence raised the issue of an accidental killing. In paragraph 14 of the charge, the court instructed the jury that “homicide is excusable when the death of a human being happens by accident or misfortune, though caused by the act of another who is in the prosecution of a lawful object by lawful means.” He further instructed the jury in the same paragraph that “the lawful act causing the death of another must be done by lawful means and used in a lawful degree.” In paragraph 15 of the charge the jury were instructed in substance that, if they had a reasonable doubt that appellant shot and killed the deceased, but at the time had no intention of killing him, and that from the direction and manner in which he fired the shot there was no apparent danger to appellant that said shot would kill the deceased or any other person, and that appellant used the degree of caution which an ordinarily prudent person would use under the same or similar circumstances, they would acquit appellant.

Appellant timely excepted to said paragraph 15, on the ground that said charge was in effect a charge on negligent homicide, whereas the issue of accidental homicide' should have been submitted untrammeled by the question of negligence. In other words, appellant contended that he was entitled to a separate, distinct, and unrestricted charge on accidental homicide. We are unable to agree with his contention, in our opinion, the testimony of appellant himself raised the issue of negligent homicide of the first degree, but failed to raise the issue of accidental homicide. Appellant was a city policeman of the city of Vernon, Tex. Having been advised by a Mrs. SWartwood that she had been assaulted, raped, and robbed, and having been given a meager description of her assailant, appellant, accompanied by another policeman, returned to the business section .of Vernon for the purpose of seeking and arresting the offender. G. M. Stroud, the deceased, was seen by appellant and his brother officer wallring diagonally across a street. Being of the opinion that deceased was probably the offender, appellant said to him: “Stop a minute; I want to talk to you.” Instead of stopping, deceased kept walking, at the same time looking back over his shoulder at appellant and his companion. Whereupon appellant said to-deceased: “I am an officer; I want to talk to you.” At this point appellant got out of the car. Deceased began to run. We quote from appellant’s testimony on direct examination as follows:

“The man then broke and run. That is the •first time that I hollered more than an ordinary conversation, and that is what I told him, to stop'; I said that tolerable loud. And the man broke and run, and the course he was pursuing he would hit the sidewalk just before he got to the mouth of the alley in front of Sumner-Gol-ley’s office; and when I told him two or three times to stop I pulled my gun and fired one shot, down and to the right. My intention was to frighten the man into stopping. I wanted to stop him, because I thought that was the man I wanted, if not for that cause for some other. He had a small bundle under his right arm. I did not shoot to hit him, I shot down to the right. I figure he was around 70 or 80 feet from me approximately when I fired the first shot. When I fired the first shot, the man did nothing that I could tell; he didn’t even act like he heard the shot. He was still running, and just about the time that he got even with the mouth of the alley I fired another shot, down and to the right, but pulled it a little bit closer to him, with no intention of hitting him. About the time I fired my second shot, Mr. Pittman fired one shot, but I don’t know whether he fired before or after me; the shots come so near together that I couldn’t tell. When I was firing those shots, I did not know who this man was. I learned afterwards who he was; when he stopped and I approached him, he told me who he was; he told me his name was Stroud. After I fired the second shot, the first I noticed he began to slow up, and the first thing that struck me was that he had decided to stop, and he run, I guess, 25 feet and stopped, and just about the time he stopped he says, ‘Oh, you have shot me.’ ”

Appellant’s description of the transaction showed beyond dispute that he intentionally discharged his pistol in the direction of deceased. If, at the time he fired the shots, an apparent danger of causing the death of' deceased appeared, appellant was guilty of negligent homicide, although he did not intend to kill deceased. Biggerstaff v. State, 59 Tex. Cr. R. 575, 129 S. W. 840. There being no issue of an accidental killing, and appellant’s own testimony clearly bringing the homicide within the definition of negligent homicide of the first degree, the charge complained of by appellant could in no manner have been prejudicial to his rights.

In his amended motion for a new trial, appellant alleged in substance that during the trial of the case the jury visited the scene of the homicide, and viewed the ground and the location of the buildings and' objects about which testimony had been given. Attached to the motion were the affidavit's of 10 jurors in support of the averments contained in said motion.

The practice of permitting the jury to view the place where the crime was committed is condemned in this state. Kile v. State, 106 Tex. Cr. R. 328, 291 S. W. 1104; Lovett v. State, 87 Tex. Cr. R. 548, 223 S. W. 210; Fate v. State, 73 Tex. Cr. R. 278, 164 S. W. 1018; Riggins v. State, 42 Tex. Cr. R. 472, 60 S. W. 877. No evidence on the question of the misconduct of the jury in the respect mentioned is brought before this court, either by bill of exceptions or statement of facts. The order of the court overruling the motion for a new trial recites that evidence was heard thereon. . When the order of the court overruling the motion for a new trial recites that evidence was beard, it will not be presumed on appeal that the affidavits attached to the motion were considered, or that they were alone considered. Where the record indicates that the court heard evidence on the issue, this court must presume that the court’s action in overruling the motion was correct, and that the trial court acted on evidence that was sufficient to justify his action. Sykes v. State (Tex. Cr. App.) 2 S.W.(2d) 863; Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99; Hughey v. State, 98 Tex. Cr. R. 413, 265 S. W. 1047.

Applying this rule to the instant case, we must presume that the court’s action in overruling the motion for a new trial was correct. If the jury had received evidence from an inspection of the ground that could have militated against the rights of appellant, and the matter was properly before this court for review, a reversal of the case would necessarily result. Watson v. State, 52 Tex. Cr. R. 85, 105 S. W. 509.

Finding no reversible error, the judgment is affirmed.

PER OURIAM. 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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