HEJSFDEBSOH, Judge.
Appellant was convicted of manslaughter, and her punishment assessed'at four years confinement in the penitentiary ; hence this appeal.
We will state enough of the facts in order to discuss the question raised as to the charge on manslaughter, and incidental to this, the court’s charge on negligent homicide. The homicide occurred in the city of Fort Worth, about 3 o’clock on the morning of December 23rd, 1903. Deceased, Ab Patterson, in company with Albert and Beatty Brown, Arch Stewart, and Lish Ball (farmer boys living in Johnson County, then visiting in Forth Worth) went to the bawdy house kept by appellant. Dpon their arrival they found another man, who was a stranger to them, and has not been seen since the homicide. A short time after they entered one of the parlors, the stranger complained of being cold and started to make a fire. Appellant told him not to do so; but he insisted, and put a piece of coal in the stove. Appellant immediately went around the stove towards the stranger, and he left the room, going into the hall, appellant following. One or two of the witnesses testified that they heard something like a lick struck at the front door; did not know whether the lick was struck by the stranger or by appellant. Deceased and his companions passed out the front door on to the gallery, immediately behind the stranger. Appellant remained at the door. As soon as they passed out, some of the witnesses for the State testified that she" called for a gun, and when they had proceeded down the sidewalk some eight or ten steps, toward the corner of the next street, she fired. Deceased and his companion proceeded down the street, and just after they turned the corner, deceased began to stagger. One of his companions asked what was the matter, and he said, “I am killed,” and immediately fell and expired. Two or three persons in the house with deceased positively identified appellant as the person who stood upon the gallery and fired the shot. One of the State’s witnesses, to wit: Stewart testified: “After we got up and started, this woman stood and held the door until we got out. She closed the door, and we got out to the bottom of the steps, and had taken four or five steps maybe, I don’t remember how far we had gotten; when she opened the door again. When she opened the door she had a pistol in her hand, and just came with the pistol in her hand and shot, and we started to run, and she shot right in the crowd. We started to run, and when we got to the corner, deceased staggered like a drunken man, and immediately afterwards fell.” This witness also stated that he heard appellant say something after they had gotten out of the door. She says, “hand me a gun or pistol.” Another witness, Rube Black, not with the crowd of boys in the bawdy house, passed there on his way to work. He states: “When I passed by Mildred Clifton’s, there was a crowd of boys standing on the sidewalk, probably half a dozen. I first saw a crowd of boys, about half a dozen, and a hack in front of the house, and I saw a woman open the door and come out on the gallery, and says: ‘Bun, you sons of bitches, run,’ and she put her hand on the post and fired. Then she turned
and walked back in the house; and there was a young lady on the inside of the door. She asked, ‘Did they run?’ And she said, ‘Yes, the sons of bitches run.’ She fired with a pistol pointed toward the boys, kinder southeast of her front door. When she said ‘run, you sons of bitches, run,’ and fired, the boys ran south.” Appellant by her own testimony denies the entire transaction. She and other witnesses, inmates of the house of prostitution, testified that no shot was fired from the^ front gallery of the house that night. This is a sufficient statement of the case in order to present the assignments relating to the charge of the court. •
The court gav.e the general definitions of manslaughter; among other things: “That manslaughter is voluntary homicide committed under the influence of sudden passion, arising from an adequate cause, neither justified nor excused by law.” In applying the law of manslaughter to the facts, the court uses this language: “If you believe from the evidence, beyond a reasonable doubt, that Mildred Clifton the defendant, did, in Tarrant County, Texas,' on or about the 23d day of December, 1903, and before the filing of the indictment read to you, unlawfully kill Ab Patterson, by shooting him with a pistol, and that said killing was committed under the immediate influence of sudden passion on the part of the defendant toward Ab Patterson or towards some other person as the expression ‘sudden passion’ is above defined, and that said sudden passion arose from an adequate cause, as the expression ‘adequate cause’ is above defined, then it will be your duty to find the defendant guilty of manslaughter and assess her punishment at imprisonment in the State penitentiary for some period of time not less than two nor more than five years; but .unless you so believe from the evidence beyond a reasonable doubt, then you will acquit the defendant of manslaughter.”
The court gave a definition of negligent homicide of the second degree, and then instructed the jury as follows: “If you believe from the evidence beyond a reasonable doubt that Mildred Clifton, the defendant, did, in Tarrant County, Texas, on or about the 23d day of December, 1903, kill Ab Patterson by shooting him with a pistol, and that said killing occurred on a public street in the city of Fort Worth, and if you further believe from the evidence that at the time of said shooting there was an apparent danger by said shooting of causing the death of said Ab Patterson or some other person, and that there was no apparent intention to kill Ab Patterson or any other person, then you will find the defendant guilty of negligent homicide of the second degree and assess her punishment at confinement in the county jail, for some period of time not exceeding three years, or by a fine in some sum of money not exceeding three thousand dollars; but unless you so believe from the evidence you will acquit the defendant of negligent homicide of the second degree.”
The contention of appellant is that the charge on manslaughter omitted to instruct the jury that the killing must be intentional; and the effect of it was to leave the jury with no criterion or distinction between negli
gent homicide of the second degree and manslaughter. An inspection of the charge of the court, when applying the law to the facts in manslaughter shows that the court did omit to tell the jury that the homicide must be intentional, still the jury were authorized to look back to the "court’s definition of manslaughter, in which they were told that the killing must be voluntary, that is, intentional. However, if it be conceded that the court’s charge on manslaughter was erroneous in not submitting the question of an intentional killing to the jury, still, if the facts here show that manslaughter was the lowest grade of homicide of which the jury could find appellant guilty, that is, that negligent -homicide is not in the cáse the error of the court in its charge on manslaughter would not affect appellant. In our view of the facts, negligent homicide is not in the case; and the court was not authorized to charge on that subject. Our statute requires that in negligent homicide there be no apparent intention to kill.
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HEJSFDEBSOH, Judge.
Appellant was convicted of manslaughter, and her punishment assessed'at four years confinement in the penitentiary ; hence this appeal.
We will state enough of the facts in order to discuss the question raised as to the charge on manslaughter, and incidental to this, the court’s charge on negligent homicide. The homicide occurred in the city of Fort Worth, about 3 o’clock on the morning of December 23rd, 1903. Deceased, Ab Patterson, in company with Albert and Beatty Brown, Arch Stewart, and Lish Ball (farmer boys living in Johnson County, then visiting in Forth Worth) went to the bawdy house kept by appellant. Dpon their arrival they found another man, who was a stranger to them, and has not been seen since the homicide. A short time after they entered one of the parlors, the stranger complained of being cold and started to make a fire. Appellant told him not to do so; but he insisted, and put a piece of coal in the stove. Appellant immediately went around the stove towards the stranger, and he left the room, going into the hall, appellant following. One or two of the witnesses testified that they heard something like a lick struck at the front door; did not know whether the lick was struck by the stranger or by appellant. Deceased and his companions passed out the front door on to the gallery, immediately behind the stranger. Appellant remained at the door. As soon as they passed out, some of the witnesses for the State testified that she" called for a gun, and when they had proceeded down the sidewalk some eight or ten steps, toward the corner of the next street, she fired. Deceased and his companion proceeded down the street, and just after they turned the corner, deceased began to stagger. One of his companions asked what was the matter, and he said, “I am killed,” and immediately fell and expired. Two or three persons in the house with deceased positively identified appellant as the person who stood upon the gallery and fired the shot. One of the State’s witnesses, to wit: Stewart testified: “After we got up and started, this woman stood and held the door until we got out. She closed the door, and we got out to the bottom of the steps, and had taken four or five steps maybe, I don’t remember how far we had gotten; when she opened the door again. When she opened the door she had a pistol in her hand, and just came with the pistol in her hand and shot, and we started to run, and she shot right in the crowd. We started to run, and when we got to the corner, deceased staggered like a drunken man, and immediately afterwards fell.” This witness also stated that he heard appellant say something after they had gotten out of the door. She says, “hand me a gun or pistol.” Another witness, Rube Black, not with the crowd of boys in the bawdy house, passed there on his way to work. He states: “When I passed by Mildred Clifton’s, there was a crowd of boys standing on the sidewalk, probably half a dozen. I first saw a crowd of boys, about half a dozen, and a hack in front of the house, and I saw a woman open the door and come out on the gallery, and says: ‘Bun, you sons of bitches, run,’ and she put her hand on the post and fired. Then she turned
and walked back in the house; and there was a young lady on the inside of the door. She asked, ‘Did they run?’ And she said, ‘Yes, the sons of bitches run.’ She fired with a pistol pointed toward the boys, kinder southeast of her front door. When she said ‘run, you sons of bitches, run,’ and fired, the boys ran south.” Appellant by her own testimony denies the entire transaction. She and other witnesses, inmates of the house of prostitution, testified that no shot was fired from the^ front gallery of the house that night. This is a sufficient statement of the case in order to present the assignments relating to the charge of the court. •
The court gav.e the general definitions of manslaughter; among other things: “That manslaughter is voluntary homicide committed under the influence of sudden passion, arising from an adequate cause, neither justified nor excused by law.” In applying the law of manslaughter to the facts, the court uses this language: “If you believe from the evidence, beyond a reasonable doubt, that Mildred Clifton the defendant, did, in Tarrant County, Texas,' on or about the 23d day of December, 1903, and before the filing of the indictment read to you, unlawfully kill Ab Patterson, by shooting him with a pistol, and that said killing was committed under the immediate influence of sudden passion on the part of the defendant toward Ab Patterson or towards some other person as the expression ‘sudden passion’ is above defined, and that said sudden passion arose from an adequate cause, as the expression ‘adequate cause’ is above defined, then it will be your duty to find the defendant guilty of manslaughter and assess her punishment at imprisonment in the State penitentiary for some period of time not less than two nor more than five years; but .unless you so believe from the evidence beyond a reasonable doubt, then you will acquit the defendant of manslaughter.”
The court gave a definition of negligent homicide of the second degree, and then instructed the jury as follows: “If you believe from the evidence beyond a reasonable doubt that Mildred Clifton, the defendant, did, in Tarrant County, Texas, on or about the 23d day of December, 1903, kill Ab Patterson by shooting him with a pistol, and that said killing occurred on a public street in the city of Fort Worth, and if you further believe from the evidence that at the time of said shooting there was an apparent danger by said shooting of causing the death of said Ab Patterson or some other person, and that there was no apparent intention to kill Ab Patterson or any other person, then you will find the defendant guilty of negligent homicide of the second degree and assess her punishment at confinement in the county jail, for some period of time not exceeding three years, or by a fine in some sum of money not exceeding three thousand dollars; but unless you so believe from the evidence you will acquit the defendant of negligent homicide of the second degree.”
The contention of appellant is that the charge on manslaughter omitted to instruct the jury that the killing must be intentional; and the effect of it was to leave the jury with no criterion or distinction between negli
gent homicide of the second degree and manslaughter. An inspection of the charge of the court, when applying the law to the facts in manslaughter shows that the court did omit to tell the jury that the homicide must be intentional, still the jury were authorized to look back to the "court’s definition of manslaughter, in which they were told that the killing must be voluntary, that is, intentional. However, if it be conceded that the court’s charge on manslaughter was erroneous in not submitting the question of an intentional killing to the jury, still, if the facts here show that manslaughter was the lowest grade of homicide of which the jury could find appellant guilty, that is, that negligent -homicide is not in the cáse the error of the court in its charge on manslaughter would not affect appellant. In our view of the facts, negligent homicide is not in the case; and the court was not authorized to charge on that subject. Our statute requires that in negligent homicide there be no apparent intention to kill. Here, if negligent homicide of the second degree is an issue in the case, it must arise from the State’s testimony alone, inasmuch as appellant cuts herself off entirely from any participation in the homicide. If the witnesses for the State showed that appellant was using the pistol merely to frighten the stranger or the crowd of boys with deceased, and it was incautiously or accidentally discharged, she not intending to kill or injure, merely to alarm them, there might be something in appellant’s contention, if the court had failed to discriminate in his charge between manslaughter and negligent homicide. But we do not so understand the testimony. As heretofore stated, the witnesses who testified on this point show that she pointed the pistol at or towards the parties, and fired, exclaiming “run, you sons of bitches, run.” It can hardly be claimed from this evidence that pointing a pistol at a person and firing it, indicated no apparent intention to kill. This is not like the case of Reddick v. State, 47 S. W. Rep., 993, relied on by appellant. In that case there was direct testimony to the effect that Reddick did not intend to kill his son, but fired his pistol merely to frighten him, and beside his intention, shot him. In this case, -as: stated, appellant and her witnesses cut herself off entirely from the transaction; and the evidence of the State’s witnesses show an apparent intention to kill, in pointing the pistol and firing.it into the crowd. We do not think the circumstances, in connection with the testimoy given by the State’s witnesses, could be interpreted into an act of negligence merely, not evidencing an apparent intent to kill. Appellant was evidently angered, either at the stranger (if it can be gathered that he gave her a lick at the door) or because the crowd was leaving. She evidently believed the stranger was in the crowd, as the evidence shows he left about the same time. They were not hurried in their movements, but walked slowly, and gave her opportunity to open the door again, call for the pistol, return and fire when they had only gotten about ten steps from the gallery. We fail to see under these circumstances any issue of negligent homicide. As to manslaughter, as stated before, appellant was
found guilty of that offense, and any error in the charge as to that matter passes out. The judgment is affirmed.
Affirmed.
Davidson, Presiding Judge, dissents.