
    EGBERT v. STATE.
    (No. 3515.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.
    Rehearing Denied May 19, 1915.)
    1. Cbiminai, Law <&wkey;814.— Instructions — Circumstantial Evidence.
    Where the main fact to be proved in a criminal case is shown by direct testimony, a charge on circumstantial evidence is not required.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 1821,1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985,1987; Dec. Dig. &wkey;814.j
    2. Criminal Law i&wkey;>814 — Instructions — Circumstantial Evidence.
    Where a criminal act has been proved by direct evidence, a charge on circumstantial evidence is not required, though the intent with which the act was committed is established by circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821.1833. 1839, I860,1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. &wkey;814.J
    3. Criminal Law <&wkey;814 — Instructions— Circumstantial Evidence.
    Where the facts proved are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony, a charge on circumstantial evidence is not required.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821,1833, 1839, 1860,1865, 18S3, 1890,1924,1979-1985, 1987; Dec. Dig. &wkey;814.]
    4. Criminal Law <&wkey;814 — Evidence —Circumstantial Evidence — Instructions.
    Where a witness testified that he saw a shot fired and decedent fall, and that accused fired the shot, and other witnesses showed that decedent was shot in the back, and that accused was in the rear of him, while the only other person who fired shots on the occasion of the killing was in front of decedent, there was direct testimony that accused fired the fatal shot, and an instruction on circumstantial evidence was not required.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821,1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985,1987; Dec. Dig. &wkey;814.]
    5. Homicide <&wkey;68, 74 — “Negligent Homicide” — Acts Constituting.
    Under White’s Ann. Pen. Code 1911, arts. 683-6S9, 692-694, defining homicide by negligence as homicide in performance of lawful or unlawful acts, and declaring- that there must be no apparent intent to kill, and that negligent homicide of the first degree may be committed by discharging firearms on or near a public highway, and that negligent homicide of the second degree may be committed where accused commits an unlawful act, “negligent homicide” is a killing which can only be predicated on facts showing no intention to kill, and one who intentionally fired a gun under the mistaken belief that it was loaded with shot that would inflict injury only, while the gun was so loaded as to cause decedent’s death, he was guilty of negligent homicide in the second degree, and,_ if the shooting occurred on or near a public highway while engaged in a lawful act, he was guilty of negligent homicide in the first degree.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 91, 92, 97-101; Dee. Dig. &wkey; 68, 74.
    For other definitions, see Words and Phrases, First and Second Series, Negligent Homicide.]
    6.' Ckiminal Law <&wkey;829 — Instructions—Refusal oe Instructions Covered by Charge Given.
    It is not error to refuse a requested charge fully covered by the charge given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;>829.]
    7. Criminal Law <&wkey;1166 — Denial oe Continuance-Prejudicial Error.
    The overruling of a motion for a continuance on the ground of the absence of a witness who would testify only on the issue of guilt of accused of manslaughter was not erroneous, where accused was found guilty of manslaughter only, and was subjected to the lowest penalty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3100-3102, 3107-3113; Dec. Dig. 4&wkey;1166.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Jack Egbert was convicted of manslaughter, and he appeals.
    Affirmed.
    Farrar & McRae, of Waxahachie, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at two years’ confinement in the penitentiary.

The evidence would show that appellant and Bob Craven were employed by Ellis county as guards of the county convicts. On the day of the homicide they were taking some 30 convicts from the county farm to the farm of Mr. Charles Davis. Mr. Craven was in advance of the convicts and appellant was in the rear of them. When near Davis’ gin some 5 of the convicts made a break for liberty. Shots were fired by both appellant and Craven, and one of the escaping convicts, Leslie De Walt, was killed. The doctor, who examined the body of the dead man, says:

“The cause of his (deceased’s) death was hemorrhage from a gunshot wound, as I saw it. I looked at his wounds; do not know how many there were, but they were in his back; could not say how many there were. My best recollection is that there were eight or ten wounds. There was one right here (indicated) even down, on his hips, there was one or two on his hips, as I remember, and there was one that just cut right across his shoulder here (indicated), and they were all over his back — scattered around over his back.”

The first contention made by appellant is-that the court erred in failing to charge on circumstantial evidence, and in failing to give his special charge presenting that issue.

It has always been the rule in this state that, if there is direct testimony of the main fact to be proved (in this case that appellant fired the shot that killed deceased), a charge-on circumstantial evidence is not required. Tooney v. State, 8 Tex. App. 462; Buntain v. State, 15 Tex. App. 520; Hunnicut v. State, 18 Tex. App. 522, 51 Am. Rep. 330; Hayes v. State, 30 Tex. App. 407, 17 S. W. 940; Bennett v. State, 32 Tex. Cr. R. 216, 22 S. W. 684; Atkinson v. State, 34 Tex. Cr. R. 424, 30 S. W. 1064; Dobbs v. State, 51 Tex. Cr. R. 629, 103 S. W. 918; Williams v. State, 58 Tex. Cr. R. 82, 124 S. W. 955.

And where an act has been testified to-by direct evidence a charge on circumstantial evidence is not required, because the intent with which the act was committed is sought to be established by circumstances. Flagg v. State, 51 Tex. Cr. R. 603, 103 S. W. 855; Roberts v. State, 44 Tex. Cr. R. 267, 70 S. W. 423; Alexander v. State, 40 Tex. Cr. R. 407, 49 S. W. 229, 50 S. W. 716; Russell v. State, 38 Tex. Cr. R. 596, 44 S. W. 159; Williams v. State, 58 Tex. Cr. R. 82, 124 S. W. 955.

Again, if the facts proven are in such-, close juxtaposition to the factum probandum as to be equivalent to direct testimony,' a. charge on circumstantial evidence is not required. Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; Smith v. State, 90 S. W. 638; Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Adams v. State, 34 Tex. Cr. R. 471, 31 S. W. 372; Holt v. State, 9 Tex. App. 582; Montgomery v. State, 55 Tex. Cr. R. 502, 116 S. W. 1160; Wheeler v. State, 15 Tex. App. 612.

We have cited these general propositions-of law (which have always prevailed in this-state), and will now apply them to the evidence in this case.

E. A. Talbert, one of the convicts, testified that deceased and he were “chums or partners”; that they had been sent to the-county farm for unlawfully riding trains; that in going from the county farm to the-Davis farm that he and deceased were about the center of the convicts; that the convicts who attempted to escape threw their cotton-sacks towards the rear and ran; that they ran up near the gin, and when they got about the middle of the seedhouse the shot was fired, and he saw De Walt fall; that Capt. Jack (appellant) fired that shot.

Appellant’s able counsel ingeniously argue that this is shown to be but an opinion of the witness, taking into consideration his position, etc., but we take it that it is positive testimony that appellant fired the shot that killed deceased. It may be that other testimony in the record would authorize the jury to disregard it (but apparently they did not do so), but we are only discussing at this time whether or not the court committed error in failing- to charge on circumstantial evidence, and, in our opinion, with this evidence in the record, no such charge was called for or required. Again, the testimony of all the witnesses show that appellant was iff the rear of the convicts and Craven was in front of the convicts, and these two men alone fired shots on that occasion; that deceased was shot in the back, and it would be difficult for a man in front to have fired the shot that hit De Walt in the back, when he was in front of him. The testimony showing that appellant was in the rear, Craven in front, and the shot struck the deceased in the back, both shooting, the facts would be about equivalent to positive testimony that appellant fired the shot that killed deceased, if the testimony of Talbert was not in the record, and under the authorities above quoted this assignment presents no error.

The next proposition insisted on by appellant is that, while appellant testified that he fired a shot, he did not intend to kill anyone, and he did not know whether or not he hit any one or not; that he did not know whether or not he shot De Walt or Craven shot him. He also testified that he thought the gun was loaded with No. 4 shot, and not buckshot, and the court should have instructed the jury:

“You are further instructed that our law provides that, 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; such mistake being such that the person so acting under the mistake would have been excusable had his conjecture as to the fact been correct, and the mistake did not arise from a want of proper care on the part of the person committing the offense. Therefore, if you should believe from the evidence beyond a reasonable doubt that the defendant fired the shot that killed Leslie De Walt, and that the death of said De Walt, was caused by his gun being loaded with shot larger than No. 4, and his death would not have been a probable consequence had he been shot under the circumstances had said gun been loaded with No. 4 shot, and if you further believe that the defendant believed his gun was loaded with No. 4 shot, and its being loaded with larger shot than No. 4 shot was a mistake as to him, and such mistake did not arise from a want of proper care on his part, and that, laboring under such mistake, the defendant fired his gun with no specific intent to hit any one, or only to alarm the prisoners who were escaping, if such was the case, and he did so fire his gun, and under such circumstances killed Leslie De Walt, then such killing would be excused on account of such mistake of fact, and you will acquit the defendant; and, if you have a reasonable doubt of defendant’s guilt hereunder, you will give him the benefit of such doubt and acquit him.”

The question arises: If appellant’s gun had, in fact, been loaded with No. 4 shot, and such shot in the gun he was using would not have killed deceased at the distance he was from appellant, yet the shot struck deceased, would appellant be guilty of any character of offense, even though in firing the shot he had no intent to kill? If he would have been guilty of any character of offense, the court properly refused the charge. If, as a matter of law, one shoots a gun, with no intent to kill, loaded in a manner he did not believe he could kill, yet also knowing that it was loaded with a character of shot that would inflict injury, would he be entitled to be acquitted of any and all character of offenses? We do not think so, and the court, we think, properly held that under such circumstances he would be guilty of negligent homicide, and submitted that issue to the jury, in a charge in which there is no room for complaint. Our Code provides:

“Art. 688. Homicide by negligence is of two kinds — 1. Such as happens in the performance of a lawful act; and 2. That which occurs in the performance of an unlawful act.
“Art. 684. If any person in the performance of a lawful act shall, by negligence and carelessness, cause the death of another, he is guilty of negligent homicide of the first degree.
“Art. 685. A ‘lawful act’ is one not forbidden by the penal law, and which would give no just occasion for a civil action.
“Art. 686. To constitute this offense there must be an apparent danger of causing the death of the person killed, or some other.
“Art. 687. The want of proper care and caution distinguishes this offense from excusable homicide. The degree of care and caution is such as a man of ordinary prudence would use under like circumstances.
“Art. 688. Throwing timbers by a workman from the roof or upper part of a house in a public street or highway, or where a number of persons are known to be around the house; or discharging firearms on or near a public highway, other than a street in a town or city, in such manner as would be likely to injure persons who might be passing, are examples of negligent homicide of the first degree, in case of death resulting therefrom. If death is caused by the careless discharge of firearms in a public street of a town or city the offense will be of a higher degree.
“Art. 689. To bring the offense within the definition of homicide by negligence, either of the first or second degree, there must be no apparent intention to kill.”
“Art. 692. The definitions, rules and provisions of the preceding articles of this chapter, with respect to negligent homicide of the first degree, apply also to the offense of negligent homicide of the second degree, or such as is committed in the prosecution of an unlawful act, except when contrary to the following provisions :
“Art. 693. Negligent homicide of the second degi'ee can only be committed when the person guilty thereof is in the act of committing or attempting the commission of an unlawful act.
“Art. 694. Within the meaning of an ‘unlawful act’ as used in this chapter are included— 1. Such acts as by the penal law are called misdemeanors;' and, 2. Such acts, not being penal offenses, as would give just occasion for a civil action.”
“Negligent homicide,” it is thus seen, is a killing which can only be predicated upon facts showing no intention to kill. Appellant swears he had no intention to kill, and there is testimony in the record that if the gun had been loaded with No. 4 soft shot, it might not have killed the distance the two were apart. It lias been said that negligent homicide of the second degree, is a homicide which occurs in the performance of an unlawful act when the unlawful act does not arise above the grade of a misdemeanor, and where the evidence would warrant the jury in concluding that in the performance of the act there was no apparent intention to kill. Robins v. State, 9 Tex. App. 666; McConnell v. State, 13 Tex. App. 390; McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647. This case shows appellant intended to fire the gun, and shows further that, if he believed it would not kill, loaded as it was, yet he knew it would inflict injury, and, if he intentionally shot at deceased with such a weapon under such circumstances, he would be guilty of a misdemeanor if he had not killed, and, as he did kill, he would be guilty of negligent homicide in the second degree. On the other hand, if he did not intend to shoot at deceased, and did not intend to inflict any injury on him, yet he intentionally fired the gun (as all the testimony shows he did), our statute provides that the discharge of firearms on or near a public highway in such a manner as would likely injure persons who might be passing, and death resulted therefrom, is negligent homicide of the first degree; and, further, that even though one be engaged in a lawful act, yet by negligence and carelessness cause the death of another, he is guilty of negligent homicide of the first degree.

There is no qúestion in the case of any accidental or unintentional shooting the gun. The testimony of appellant, and all the testimony, shows that he intentionally fired the shot. As to his intent in shooting it is a question under the evidence, but the question of whether he intended to kill the deceased is not an issue in negligent homicide of the first degree. If he intentionally shot the gun, and by negligence and carelessness had it pointed at the deceased when he fired it, the shot hitting and killing deceased, he would be guilty. Appellant apparently has not taken into consideration the fact that negligent homicide is based wholly upon the theory that the evidence must show there was no intent to kill by an act intentionally done. Accidental homicide arises only when the act which caused the death was unintentionally done. There is nothing in this record to raise the issue that appellant did not intend to shoot, therefore the court did not err in refusing the special instruction to acquit under the facts stated in the special charge, because appellant would not be entitled to an acquittal under such state of facts. The county convicts were fleeing in front of him; he intentionally shot his gun, and killed one of them. Either by negligence in holding his gun, in having it pointed at the convicts at the time, or by intention, the shot struck De Walt, and under either of such circumstances the special charge requested was not the law of the case.

As the court gave appellant’s special charge No. 8, it was not necessary to give charge No. 2. Charge No. 8 reads;

“Gentlemen of the jury, you are further instructed in connection with my main charge that if you have a reasonable doubt from all the testimony before you as to whether the shot that killed Leslie De Walt, if you believe beyond a reasonable doubt that he was shot and killed, was fired by Bob Craven, and not by the defendant, Jack Egbert, it is your duty to resolve such doubt in favor of the defendant and acquit him in this case.”

This charge fully covered that phase of the defensive testimony.

As appellant was found guilty of manslaughter only, the lowest penalty being assessed, there could be no error in overruling the motion for a continuance. The absent testimony could and would bear only on the issue of manslaughter.

We readily agree with the contentions of appellant that, if a case rests wholly upon circumstantial evidence, the court must so instruct the jury, that it is the duty of the court to submit in his charge every issue raised by the testimony, and that the defendant is entitled to have affirmatively submitted matters of defense, but we are of the opinion that the court did in his main charge, and the charges given at the request of appellant, submit every issue raised by the testimony, and submit affirmatively the defensive issues, and we are further of the opinion that there is direct testimony in the record that appellant fired the fatal shot, and therefore no charge on circumstantial evidence was called for.

The judgment is affirmed. 
      <S=s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      fesfoi: other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     