32 S.W.2d 358 | Tex. Crim. App. | 1930
Lead Opinion
Conviction for driving an automobile upon a public highway while intoxicated; punishment, ninety days in the county jail.
The indictment in this case charges that appellant operated his automobile upon Franklin Avenue, a street within the limits of the incorporated City of Waco, he being then and there intoxicated, and in a degree under the influence of intoxicating liquor. The testimony in the case showed without dispute, by a number of witnesses, that appellant was drunk at the time of such operation.
There are three bills of exception, the first of which complains of an argument of the State's attorney who stated to the jury "There are some things about this case that you are not permitted to know, because of what we term technicalities." This is all the bill contains. We do not think the statement put before the jury any obviously hurtful fact, there being no intimation of what things are referred to, but it seems a matter for regret that such argument should be made and the records encumbered with such complaints.
The second bill complains of a statement of the State's attorney to the effect that he said to the jury that there are two kinds of criminals, one who makes a mistake and comes into court and pleads guilty, "that was the kind of a man you tried this morning." The bill is qualified by the court's statement that his attention was first called to the remarks by the presentation to him of a special charge to the jury, which he gave. From the qualification further we conclude that the court felt himself not advised as to whether the *312 matters set up in the bill of exception were true or otherwise. He states that no proof was made except that defendant offered his motion in evidence and the State offered its controverting answer thereto. We find nothing tangible in the bill of exception showing any error.
The third bill of exception presents appellant's complaint of the fact that in the charge the court told the jury that if they believed from the evidence beyond a reasonable doubt that appellant was in a degree under the influence of intoxicating liquor, they should find him guilty, it being urged that the court does not define the meaning of the expression "being in a degree under the influence of intoxicating liquor." Appellant refers us to Nunn v. State,
Finding no error in the record for which reversal should be ordered, the judgment will be affirmed.
Affirmed.
Concurrence Opinion
I think the words "or in any degree under the influence of intoxicating liquor," as contained in Art. 802, P. C., are too indefinite to define a criminal offense. The appearance of the words in the statute, however, does not vitiate it. See Williams v. State, 100 Tex.Crim. R.. The evidence in the present instance, without controversy, characterizes the accused as drunk. In the indictment it is charged that he drove an automobile upon a public street while he was intoxicated, and the jury was instructed in language to the same effect. Therefore, the use of *313 the words "in any degree under the influence of intoxicating liquor, so far as they affect the present case, is merely surplusage and could not affect the verdict.
Addendum
"I know where Franklin is located in the city of Waco. Franklin Avenue is within the corporate limits of the city of Waco. I know that."
This would seem to suffice as proof. However, it appears from the records in the office of the Secretary of State that Waco is an incorporated city; that it was incorporated under the enabling act to the Home Rule Amendment to the Constitution, which is Art 11, Sec. 5. In the enabling act of the Rev. Civ. Stat., 1925, Arts. 1173 and 1174, it is declared that courts shall take judicial knowledge of the terms of a charter of a city which is incorporated under the act mentioned. In fact, in Art. 1174, supra, it is said:
"When such charter or any amendment thereof shall be so recorded, it shall be deemed a public act and all courts shall take judicial notice of same and no proof shall be required of same."
The provision mentioned has been considered in Blackman v. State,
Under the evidence, the fact that the appellant was drunk is not open to question.
The motion for rehearing is overruled.
Overruled.
HAWKINS, J., absent. *314