Neeley v. State , 56 Tex. Crim. 508 ( 1909 )

I can not concur with my brethren in holding that the charge given by the court to the jury with reference to accidental shooting is beneficial to appellant; on the contrary, I believe it was injuriously harmful. It reads as follows: "You are further instructed, gentlemen, that if the alleged injured party, Raymond Lusk, was shot accidentally or in a scuffle over the gun between Allie Neeley and Wilmus Neeley and without any intent on the part of the said Allie Neeley to murder the alleged injured party, Raymond Lusk, or if you have a reasonable doubt as to the intent to kill, you should acquit the defendant." As an inspection of the facts set out in the opinion will show, there were two theories presented by the evidence, one an intentional shooting, the evidence to support which contention is rather weak. The second contention is that the gun went off pending a struggle between appellant and his brother Wilmus, and that the shot from the gun took effect in the shoulder of Lusk. If the discharge of the gun was accidental, appellant did not shoot at Lusk with or without any intent to kill; in fact, did not shoot at him at all. There are also two theories made by the evidence in regard to the purpose on the part of appellant in seeking to obtain the gun. The State's theory is that he was seeking the gun for the purpose of shooting Lusk, and the other was that he was trying to get the gun for the purpose of going to the lake to shoot ducks. If appellant was seeking the gun for the purpose of shooting Lusk and it went off while he and his brother were in a scuffle, appellant would not be guilty of assault with intent to murder Lusk or of purposely shooting at him, because he did not have control of the gun and did not shoot. The evidence shows that he had it by the barrel and his brother Wilmus had it by the stock or breech. If he was seeking to get the gun for the purpose of going hunting, then there was no purpose connected with his seeking to get the gun to shoot Lusk. From either standpoint the discharge was accidental. Had the court stopped his charge at the point where he informed the jury in regard to accidental shooting, it would have been sufficient, but the court went further and put the matter in the alternative, as follows: "Or in a scuffle over the gun between Allie Neeley and Wilmus Neeley and without any intent on the part of the said Allie Neeley to murder the alleged injured party, Raymond Lusk." This burdens appellant's case with a legal proposition that the writer understands to be contrary to the law, and not only so, but which may have induced the jury to convict him despite the evidence in regard to an accidental shooting. If the gun was accidentally discharged, from any view of the case appellant would not be guilty of making an assault, for under that phase of the evidence he was not directing the gun nor did he have control of it. He was seeking to get control of it either for the purpose of going hunting or for the purpose of shooting Lusk. If the gun was discharged accidentally it would make no difference what the ulterior purpose of appellant was in trying to obtain it. It was an unexecuted purpose. Under that phase of the facts he was unable to carry out or execute the purpose. Under this phase of the charge the jury could have believed readily that the discharge of the gun was accidental, but under another phase of the testimony they could have believed equally as readily that his purpose was to secure the gun to ultimately shoot Lusk. In this condition of the testimony the court practically instructs them that even if he intended to shoot Lusk, although it was an accident they would convict. I think it would take no reasoning to show the fallacy of this proposition. A party under our law may and can have the ulterior purpose to kill, but if he is not in position to do so and does not make an attempt to do so by means sufficient to carry out his purpose, he would not be guilty of homicide, and it would necessarily follow that if he could not commit the homicide by the means used, that he would not be guilty of assault to murder. This is made so by the statute. Under the charge given appellant could be sent to the penitentiary because he may have had the ulterior purpose of shooting Lusk, when he did not in fact shoot Lusk or shoot at him, but the gun was accidentally discharged in the hands of his brother Wilmus, while appellant was seeking to obtain possession of it.

I respectfully dissent from the conclusion of my brethren and think the error of sufficient importance to make these few observations.