The opinion
ON REHEARING.
February 8, 1905.
HENDEBSOE, Judge.
The judgment was affirmed at the Tyler Term (11 Texas Ct. Rep., 736), and is now before us on rehearing. Appellant strongly insists that the court was in error in holding that the issue of negligent homicide was not in this case. To support her contention, in addition to the authorities already furnished, she cites us to Curtis v. State, 22 Texas Crim. App., 227. .She urges that the facts of that case are no stronger than the facts of this case; and that the court there reversed because negligent homicide was not charged. We have examined that case carefully, and, in our opinion, the facts of that case presenting the issue of negligent homicide are stronger than here. Even there the court says, “the evidence in support of this phase of the ease may not be satisfactory or even strong, still there are facts in proof which fairly present the issue,” etc. The facts there show that it was Christmas night, and the people of the little town of Bartlett were enjoying the occasion by shooting fire-works. Deceased and Barnett procured some roman-candles, and furnished them to some boys to fight a duel with. Deceased and witness went from the back end of the storehouse to the front to see the roman-candle duel. Deceased passed into and through the east door and witness then entered the west door, when he heard some one on horseback near the gallery exclaim, “God damn, I will shoot or turn her loose.” Somebody in the crowd gathered about the street said, “Yes, God damn her; turn her loose,” and then a pistol fired. The party who did the shooting was sitting on a gray horse at the west end of the gallery, and was stooping forward when the first shot was fired. When witness first looked, party was in the act of drawing his pistol and had it pointed toward witness. Witness could see the arm and the pistol. He heard it snap and fell backwards in a barrel of cocoanuts. Directly other shots were fired: in all four or five. After the shooting deceased was found to be wounded. All of the witnesses testify to the effect that the man who did the firing was on a gray horse in the street, some six or eight feet from the gallery where deceased and others were standing; that deceased was standing obliquely to the rear of the party doing the firing. Some ten or twelve persons on horses were in the street, among them were three on gray horses; besides the crowd gathered around. It is not certain which shot took effect in deceased, but we gather it was the first or second shot. Witnesses testify that it was a frolic they were having, and everything seemed to be in fun; did not see or hear anything to indicate ill will or bad feelings on the part of anybody. There was some testimony tending to show that ill will existed between appellant and deceased sometime before. It
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does not occur to us that the testimony here showed that the pistol was used maliciously or that under all the circumstances of the case, there was any intention to shoot any one in the crowd when defendant fired his pistol. Here the facts are different. The testimony shows that appellant had just had an altercation with a party who left her house immediately before or with the crowd of boys; that she pointed her pistol directly at the crowd, and said, “Bun, you sons of bitches, run,” as she fired; as tending to show guilty knowledge on her part. Afterwards when she learned that one of the boys had been shot, she denied having-fired the pistol at all. We do not believe the facts of this case bring it within the facts of the Curtis case, supra, and do'not believe the court was required to give a charge on negligent homicide.
The motion for rehearing is overruled.
Overruled.
Davidson, Presiding Judge, absent.
December 20, 1904.