Vasque v. State , 121 Tex. Crim. 478 ( 1932 )

Appellant's insistence that the verdict should not be permitted to stand under the facts has made another review of the evidence necessary. Some conflict in the testimony upon certain points is discovered, but that only raises issues of fact which of necessity the jury must settle. This court cannot say that the verdict finds no support in the evidence.

Regarding complaint at refusal of a special charge which sought to have the jury told that the danger must be apparent when viewed from the standpoint of accused, we make the following observations. In Morris v. State, 35 Tex. Crim. 313,33 S.W. 539, the facts show that Morris was drunk and was driving his wagon at a dangerous rate of speed. In the wagon with Morris was a man named Self who was either thrown from the wagon, or became frightened and tried to get out of the wagon and was killed. The trial court was requested to give a charge to the effect that, unless Morris was "conscious" that his act of rapidly driving the wagon would likely endanger the life of Self or some other person, an acquittal should result. The charge was refused. In passing upon the question thus presented, this court said in substance that it did not believe the facts of the case required the court to give the special charge asked, hinging accused's guilt on the consciousness on his part that his acts were then endangering the life of deceased, that the facts showed that deceased was riding in accused's wagon, which accused drove in a furious and rapid manner. The court held that under such circumstances accused was charged with notice that his acts did endanger the life of the deceased.

That holding is in line with what was said again in the opinion on rehearing in Van Arsdale v. State, 94 Tex. Crim. 169,249 S.W. 863, modifying language which had been used in Worley v. State, 89 Tex.Crim. Rep.,231 S.W. 391.

It was not our purpose to say either in Ladd v. State,115 Tex. Crim. 355, 27 S.W.2d 1098, or in the original opinion in the present case, that in determining whether there was "apparent danger" as referred to in article 1232, P. C., the situation should be viewed from the jury's standpoint. The jury might have facts before them making to them "danger apparent," which facts might have been wholly unknown to the party causing the killing. The law regarding the matter, as we understand our decisions, may be stated thus. There would be "apparent danger" in contemplation of article 1232, P. C., if the circumstances were such that (1) the danger at the time was "obvious" (Van Arsdale v. State, 94 Tex.Crim. Rep.,249 S.W. 863), or (2) if an ordinary person in possession of his normal faculties, and exercising that degree of care which an ordinarily prudent person would exercise under circumstances surrounding accused, would have realized that there was danger of killing some one. (Van Arsdale v. State, 94 Tex. Crim. 169,249 S.W. 863).

Believing the case was properly disposed of in the original opinion, the motion for rehearing will be overruled.

Overruled.