138 S.W. 399 | Tex. Crim. App. | 1911
Lead Opinion
The appellant in this case was tried and convicted in the County Court of Jefferson County, charged with a misdemeanor.
The Assistant Attorney-General has filed a motion to dismiss this appeal because of the insufficiency of the recognizance, in that said recognizance does not state the punishment assessed against the appellant. In May v. State, 40 Tex.Crim. Rep., it is held: "The Twenty-Fifth Legislature amended article 887 of the Code of Criminal Procedure, and provided a form for recognizance on appeal in misdemeanor cases. Among other things, said bond is conditioned that `appellant, who has been convicted in this case of a misdemeanor and his punishment assessed at $_____, as more fully appears from the judgment of conviction, shall appear before this court,' etc., and *142 a recognizance that does not state the punishment assessed is insufficient."
In this case the recognizance is defective in that particular, and the motion of the Assistant Attorney-General is sustained, and the appeal in this case is dismissed.
Dismissed.
Addendum
At a former day of this term this appeal was dismissed because of insufficient recognizance. Application has been filed to reinstate this cause, and a recognizance as required by law filed, and the order dismissing this cause is set aside, and we will now consider the case on its merits.
1. Bill of exceptions No. 1 complains of the action of the court in refusing to quash the information and complaint. Omitting the formal parts, the information charges: "That on or about the 6th day of November, 1909, defendant did then and there unlawfully drive and operate upon a public road in the county of Jefferson and State of Texas an automobile at a greater rate of speed than eighteen miles an hour, the said public road upon which said automobile was then and there driven and operated not being then and there a race course or speedway," etc. The court did not err in overruling the motion, as the information sufficiently charges an offense under the Acts of the Thirtieth Legislature, page 193, article 448, Code of Criminal Procedure.
2. In bills of exception Nos. 2 and 3 appellant complains, 1st, that the court failed to give a special instruction, that if defendant was driving the car under the control of another, he would not be guilty, even though he was driving at a greater rate of speed than eighteen miles an hour; 2d, that if defendant was operating his car at a greater rate of speed than eighteen miles an hour, yet if he did not do so wilfully, he would not be guilty.
The article of the Code under which defendant was tried does not require that the State prove that the act was "wilfully" done. It makes it an offense to drive a car at a greater rate of speed than that named, and if the jury believed that he was driving the car at a speed greater than permitted by law, they would be authorized to convict. Very few people in driving a car have an evil intent, but the Legislature, in protection of the public, has decreed it wise to limit the speed at which these cars may run, and each one is required to keep within that limit. As to the car being under the control of another, riding therein, this would be no defense, unless the driver should show he was under duress and so drove the car at the instance and requirement of another. The evidence does not suggest such a condition.
These are all the bills of exception in the record. There are other *143 grounds of complaint in the motion for a new trial, but this being a misdemeanor, we do not consider such matters unless charges were asked covering the matter complained of, and bills of exception reserved to the action of the court. In this case the complaint is that the testimony is insufficient to show that the road was a public road. No charge was asked on this phase of the case; it is not presented to us by a bill of exceptions in any form, and this being a misdemeanor, and there being some evidence under which the jury would be authorized to find it a public road. See Haynes v. State, 2 Texas Crim. App., 84, and authorities cited.
The judgment is affirmed.
Affirmed.
[Rehearing denied June 26, 1911. — Reporter.]
