*1 LANE, Appellant, R. Charles Texas, Appellee. STATE
No. 28859. Appeals of Criminal of Texas.
Court
April 17, 1957. Rehearing
On Motion June Houston, Peyton, appellant. L.
Allie Walton, Atty., Dan Dist. Thomas D. White, Atty., Houston, Asst. Dist. and Leon Austin, Douglas, Atty., B. State’s for the State.
WOODLEY; Judge. negligent
The offense is homicide of the punishment, degree; years second jail.. complaint and were in information counts, alleging the first
two engaged in the unlawful act of an automobile on the left hand side of a public highway when said hand side highway was not clear and unobstruct- fifty yards ed for a distance of ahead. count that the auto- The second being driven at mobile speed. jury to the submitted
Both counts jury that if the found the instructions they guilty would state which defendant *2 596 proceed- guilty taking passing him and that he and another they found vehicle
count ing in the same direction at the time of both counts. guilty on could not be found collision. re- jury which was of the The verdict jury against fact issues resolved the of the the minutes ceived and entered appellant and the evidence sustains the court, judgment which the trial and jury’s appellant driving on finding that was rendered, was follows: reads as that his hand side of Charles jury “We the the defendant find in the negligence doing his so resulted Guilty Negligent Homicide R. Lane persons collision and the death of the three Driving charged of Degree the Second as named in the information. upon his left operating automobile his upon the High- information is attacked Public hand side of said road of said Ann.P.C. Penalty theory 801(A), Art. way that Maximum and assess the 6701d, 52, Ver- repealed by was years jail. Three alternative, it is In the non’s Ann.Civ.St. Jury.” Rains —Foreman of “Catón repealed, long- it if not is no contended that per drive an automobile er an offense se to in connection The verdict considered highway when of a charge is deemed sufficient with the court’s unob- is not clear and said left hand side appellant guilty under finding as a verdict ahead, yards a distance of structed for information, being that the first count of being that it essential driving the left only wherein count exceptions proved men- that none of the alleged. highway was side of the existed tioned in Sec. of Art. 6701d sufficiency allegations of the permit driving the left hand which considered, count need not be second highway. being upon first count. conviction 52, V.A.C.S., reads passenger denied that Appellant and his : follows his car to the left of the drove “Upon driver of a highway, or that the col- line of center right half shall drive vehicle on his left occurred lision roadway, except follows: roadway. there is an abundance of But theory supporting the State’s testimony passing “1. When new model two-tone appellant was proceeding in another vehicle the same Oldsmobile, without license white red and governing the rules direction being Oldsmobile was plates; movement; per speed of some hour at a miles driven “2. half of a road- When collision; that a just prior collision way is closed to traffic while under con- the Oldsmobile and a between occurred repair; struction or traveling op- automobile Chevrolet point posite -on the direction Upon “3. divided into appellant’s being left side of impact (3) three marked lanes for traffic un- roadway, which was line of the center thereon; der the rules lane; proper the Chevrolet’s Upon roadway designated “4. and the head-on Chevrolet was collision one-way signposted traffic.” 98 feet from the knocked some opposite direction from impact in the State, In Garrett v. 161 traveling of its and three four 366, a conviction under a com- killed. occupants plaint alleging and information unlaw- appel- ful act of on the left hand evidence show side of is no There passed, same was or was over- not clear had overtaken lant there is an left hand side of the road when at least a distance and unobstructed within obstruction hand side on the left affirmed, the contention yards * * by fifty yards Casares *3 700, 6701d, 465, 144 164 701. Tex.Cr.R. S.W.2d subsequent passage of the Petti also V.A.C.S., See was overruled. reason, necessary it is For like not Tex.Cr.App., 289 S.W.2d State, grew v. prove allege to that ex- the State the 935; State, Landry 156 Tex.Cr.R. v. 6701d, ceptions 52 of Art. mentioned Sec. State, 381; Taylor v. 242 S.W.2d V.A.C.S., did did not exist. or 853. 233 155 Tex.Cr.R. We remain convinced that enactment that the fact Appellant calls attention to V.A.C.S., 6701d, did not of men- 52 provisions of Sec. P.C., 801(A), portion which makes case, Garrett in the tioned in unlawful to the left hand side it of drive 52 contended that Sec. and it there was not is not clear and when the same Art. 801 conflict in irreconcilable yards 50 unobstructed for at least ahead. (A), P.C. judgment is affirmed. left side permits driving 52 on the conditions, can- but we think under certain Rehearing On Motion for it lawful to making not he construed the left hand side when drive on MORRISON, Presiding Judge. and not clear. is obstructed rehearing, our attention directed to V.A.C.S., On 6701d, provides 57 Art. of be conflict seemingly irreconcilable driving left of “Further limitations on to State, 161 Garrett holdings in our which, tween roadway”, of the first of center 366, Marti 279 S.W.2d zone, in the passing was referred to no Tex.Cr.App., nez v. Garrett case. remaining limitations the center that Article driving to the left of of we held the Garrett In necessarily Ann.P.C., roadway related to are not was not re- 801(A), prohibit driving 54(a), passing but enactment of Sections pealed 6701d, roadway: the left side of the Vernon’s Ann. to 57 Article of supra, 801(A), continued St. Civ. approaching “2. When within one driving of offense on the to denounce (100) traversing any hundred feet oifor when the hand grade crossing; or railroad intersection not clear unobstructed for approaching “3. When within one yards ahead. (100) any bridge, via-
hundred feet of case, we set forth the Martinez In the duct, or tunnel.” part of the drawn charging information said, Article 52 of 6701dand limitation found true of the Section The same is requires P.C., prohibits that motor vehicles 801(A), driv- statute in Art. “That right roadway of roadway half hand side of the on the ing on the left driven be all instances and in and under all not clear and unobstructed for cases when same is except named those in the stat- yards. of 50 conditions a distance ute.” Prior the enactment of to then,
V.A.C.S.,
Court,
If,
to
construing
on the left
Article
drive
roadway except
necessary
when the
801(A),
it was not
held that
hand side
done,
may
says
such
showing
prac-
be
such
allege
that it
to
facts
statute
completely the law on the
covers
ticable to drive
side of the road
driving, and
subject
permissible to drive
should
for “it is never
on the
exception
general mandate
missible
question of
thinking
our
re-examine
Section
be done
supra, by the
repeal Article
times,
right hand side at all
the form
6701d, supra.
passage
Article
set
would
information
forth Martinez
Garrett
of our decision in
crux
proper
be a
way
prosecution
further
holding that Article
that a
case
n growing
allege
out of
lawful
repealed would make
had been
or,
my
violation
Davidson
brother
on the left
drive
points out,
might
instant offense
passing zone
no
except
in a
charged under Section 53.
provisions
and in
cases covered
those
*4
54(a)
reaching
or 56. In
such
of Sections
So, then,
Legislature
when the
decision,
necessarily
Sec-
we
overlooked
a
comprehensive
enacted a
Act with
Uniform
in
we
tion
Martinez
stated
because
a general repealing clause
makes un
which
the
to
on
left
was
lawful
drive
never
doing
the
had
lawful
the same which
act
Ar-
by
except
side
in those
authorized
cases
by
prior
been denounced
in
a
statute and
ticle 670Id.
punishment therefor,
logical
creases the
ly
superseded
newer
follows
the
act
opinion herein,
original
we
In our
repeals the
Rob
and therefore
older
In
act.
said,
permits driving
“Sec.
307,
ertson v.
159 S.W.
conditions, but
certain
we think
side under
said,
713, 722,
recognize
this Court
“We
making it
cannot be construed as
lawful
implication
repeals by
the rule that
are not
hand side when that side
on the left
drive
favored; yet
is
there
another rule which
and not clear.”
we
is obstructed
What
elementary
is
equally
as well establish
it is
law
never
should have
ed, and
a
that is:
new law covers
When
except
left hand
ful to drive
subject
one,
the whole
matter of an old
by Article 6701
permitted
d.
prescribes
penalty
provided
a different
than
old,
in
repealed
that the former is
im
observations, we return
these
With
n * *
‡
plication.
It is
to cite the
needless
question
801(A).
of Article
many cases of all
courts
and all the text
deciding
majority
now concluded that
has
support
proposition.”
books
of this
passed
lightly
case
over
the Garrett
too
reasoning of our esteemed
late la-
Having concluded that we
Smedley Dal-
mented Associate
Justice
disposition
ap
in our original
error
of this
Black,
Railway
Terminal Co. v.
las
&
peal as well as in our decision in Garrett
420,
he
Tex.
wherein
State, supra,
rehearing
motion
said,
part, “The Act of
entitled
judgment
is
granted,
affirmance is
Traffic
Regulating
High-
Act
'Uniform
aside,
overruled,
case
set
Garrett
comprehensive
ways’,
a
which
statute
judgment
is now
reversed on the
**
*
parts
repeals all laws or
laws
grounds
that the information
conflicting
provi-
inconsistent
this conviction was secured was based
Certainly,
Act.”
sions of the
Article 801
which had been
statute
and there
(A) is
with Article
inconsistent
6701d be-
not charge
fore the information did
a vio
legislates
field,
cause the latter
entire
law,
existing
prosecu
lation of
and the
title,
its
includes
cov-
stated in
offense
tion is ordered dismissed.
provides
by the
ered
former
penalty therefor.
different
DAVIDSON, Judge (concurring).
way, it is
in another
unlawful un-
Stated
disposition
original
6701d
drive on
Upon
Article
of this case
der
dissenting
when the
is not
in which
same
I
I ex-
filed
yards
view,
pressed
for 50
ahead
now entertained
a ma-
and unobstructed
clear
court,
per-
is not named
that Sec.
jority
as a
because
superseded, and
repealed,
Has
art.
Art. 6701d
P.C.,
Ann.P.C.
Vernon’s
brought
nullified Sec.
?
prosecution was
which this
but had
law
maintained,
a valid
propositions
legal
Certain
out in a
stand
by Art.
superseded
repealed and
been
question:
of that
determination
R.C.S.
established,
rule
is well
in law as well
withdrawn
opinion is now
My dissenting
sense,
byas
common
cannot
that there
.exist
concurring
thereof,
and, in
I file
lieu
two statutes which make
I think
why
reasons
opinion setting forth
assessing
each
penalty
a different
opinion is correct.
majority
a violation thereof.
reasoning to
legal
demonstrate
It takes no
expression
The latest
from this court at-
charged
that,
here
if
the offense
at the time
testing
parte
rule will
be found
Ex
committed,
(A) of
Sanford, Tex.Cr.App.,
nominated that inasmuch as (A) and Art. 6701d Highways,” appearing Traffic on both relate to denounce as a crime the 6701d, Vernon’s R.C.S. driving of a vehicle on the left-hand side That will hereafter in this and authorize the infliction to as Art. 6701d. referred penalties of different for a violation there- of, each cannot exist as a valid statute. (A) and Art. 6701d each deal stand, must One and the other fall. If of vehicles unlawful the make stand, statutes then have no both stat- highway. upon making ute in state to drive assessed for a vio- to be authorized penalty upon the left side highway. vehicle a exceeding fine of not (A) is a of Sec. lation of rule law which is punishment Another a deemed dollars. hundred one provides is that which that be here 6701d is authorized to violation statutes cover the same two where sub- than one dollar and not less not at assessed matter, ject general the one dollars, and the other which is hundred two than more special statute will special, the control to be assessed for' a not authorized double any theory implied repeal but of Sec. violation parts unobstructed for a at distance of least rule broad stand, possible, fifty yards if ahead.” must statutes acts or legislature intention appellant charged act here against special statute by the clearly reflected more as being unlawful and that which this permit Both are general one. by the than , part conviction is in rests violation application in its stand, having each ted to quoted. of Sec. above This is demon- being treat special statute proper place, the allegation strated in the state’s excepting proviso though were ed pleading that drive an auto- did Fortin general from one. something upon public mobile highway “on the left State, Tex.Com.App., S.W. berry v. public highway, of said road of said Atkinson, Tex.Civ.App., 146; Hunt v. said left road of side of said 656; Id., Tex.Com.App., S.W. public highway was then and there Id., Tex.Com.App., 17 clear and unobstructed for a distance of v. State Bank 780; City of Marshall fifty yards ahead of the said automobile Tex.Civ.App. Marshall, 60 127 S.W. being then operated and there driven and parte Townsend, 1083; 64 Tex.Cr.R. Ex by him, the said defendant.” 144 S.W. is; It apparent, therefore, also, in cited, That recent rule general statute and which makes un- one case of Sheffield Tex.Cr.App., lawful the on the left side of the S.W.2d 100. In that two statutes *6 highway at all times and under all con- one, covered the act: the ditions when highway is clear and! special general a the other a covering yards. for fifty unobstructed at least special facts. The of statute state junior passage. of time of It was validity of (A) The Sec. this- special that the statute held controlled court attested Garrett v. 161 Tex. prosecution brought that a could be there- Cr.R. against the- under. contention that Art. 6701d Sec.. (A). validity The (A) of Sec. was noir counterpart The instant case is exact there against attested as the rules of law of the Sheffield for Sec. is the (A) heretofore stated—which are that the two. statute, general while 6701d the is act,, statutes covered the same unlawful special statute. If the Sheffield is case penalties with different affixed for a viola right, yield then Sec. (A) must to tion of the same or that Art. 6701d was. 670Id. special special a statute covering a state of' express law is that rule of the another Yet facts (A) only generall and Sec. a operated Art. 6701d clause of repealing statute. Garrett case made no mention: directly repeal Sec. of such matters and cannot therefore be- having considered as determined the same.. applicability, the demonstrate Now stated: It appears, therefore, rules of law here, (A) of Sec. must be construed as a general statute as dis- contains two directives: tinguished special a from statute touching; driver of a requires that the vehicle first driving on the left highway. side of the practicable upon travel wherever shall That; analyze us 6701d: highway; re- let of the Now side right face, upon comprehensive- its is, or article all occasions “On driver quires regulation any any public treatment on. traffic vehicle operator of this state. Art. VI right highways there- shall travel highway thirteen; composed of, of some highway unless road on such side sections, numbered 52 to. highway is and different side of such clear has. left opposite directions each must remain direct reference to upon its right pass side of the highway. the oncoming right. vehicle then So reads as follows: operator when the one those vehicles crosses into the left of the highway roadway; right “Drive on side of path into the exceptions” oncoming vehicle proceeding right its “Upon the driver of a Sec. 53 has been violated. right vehicle shall drive half It will be noted section makes roadway, except as follows: no reference to passing or overtaking other “1. When and passing vehicles proceeding same direction another proceeding vehicle in the same the highway. simply, plain It and di- direction, rules governing rect language, says approach- that vehicles movement; ing each opposite other from directions must remain on their right side of high- “2. right When half of a road- way. way is closed to traffic while under repair; construction or That is exactly facts, here, what show, i.e., drove his auto- Upon “3. divided into mobile from his right side across and into three (3) marked for lanes traffic under the left side of the highway in front of the applicable thereon; rules oncoming automobile which the deceased Upon roadway designated “4. persons were riding, as a result of which signposted one-way traffic.” the collision occurred. similarity between section then, escape, is no from There the con- apparent, require both driv- special clusion that in have a ing on the except having applica- side of direct covering and *7 under certain conditions. instant tion to the facts of the case. Sec. was court before this in Martinez If rule announced the Sheffieldcase State, TexUr.App., law, escape then is there is no from the upheld as a prohibiting valid statute special is conclusion Sec. 53 highway. The driving on the subject left-side of left-side application subsequent specific Martinez case was to the with Gar- case, supra. rett facts, and it therefore instant (A). over Sec. controls 53 reads as follows: Sec. prosecution could The instant have been proceeding op- “Passing vehicles brought properly under Sec. but
posite directions” not do. state elected proceeding “Drivers of vehicles 6701d, stop in Art. did not legislature, pass each opposite directions shall other the driving make unlawful 53 to Sec. with having right, to the highway; other the left side of than one line of width for not more passed: 54 and 56 deal Secs. sections each driver traffic in each direction special reference have direct at least one-half give shall to the other vehicles operation overtaking to the portion of (½) of the main-traveled proceeding other passing vehicles nearly possible.” as as pointed out, is there As same direction. only operation is authorized practical working effect of that conditions, here, operated statute, and when not so is where certain expressly pro- approaching vehicles are each other law violated. Sec. two but Sec. make unlawful the condi- certain both 'driving under left-side Hibits a .vehicle driving of 56 makes unlawful the associ- any manner not are tions which one highway within opposite on the left side of the approaching in vehicles ated with approaching twenty-five of an hundred feet pro- overtaking a vehicle or in directions vehicle, made unlaw- while such act not same direction. ceeding in the pro- then, Sec. 56 ful under Sec. So a violation show that if facts So then by (A) that which authorizes hibits Sec. driving to by the the law occurred making act unlawful. car, the oncoming front of left and in drive an unlawful to Sec. 57 it makes spe- special and provided a has legislature high- automobile the left side of the (Sec. making that act cific statute way any conditions at time under certain pass- while occurred 53). If the violation authorizes, (A) therein forth. Sec. set the same proceeding ing another vehicle prohibit, doing because does not provided has direction, legislature expressly makes things Sec. making that specific special statutes unlawful. 56). (Secs. 54 and act unlawful Thus is it demonstrated that there are To make left-side sure conflicts and inconsistencies as well com- pro- expressly unlawful, so legislature patibilities and consistencies between the this, refer- by without vided Sec. 57—and driving. touching left-side statutes two passing, meeting, ence to stand; one cannot statutes those Both of vehicles. therefore, apparent, It is fall. must repealed, and superseded, legis- been Surely it cannot be said that the has (A) treated, special legislation, by 6701d. has not lature nullified subject driving. left-side To the repealing If the clause of Art. 6701dis to- fact situa- contrary, it has set forth certain given effect, (A) then Sec. has been expressly covered statute. tions which are directly repealed. statutes, If the two valid, and Art. are then neither repealing 156 Art. 6701d is the can stand because of the variance of the provides that “All laws or clause and punishment. If is a valid statute parts conflicting inconsistent or of laws covering general subject of left-side hereby provisions of this Act are with the driving, yield junior statute, must to the * * 670Id, special which has application us Now let examine 6701d and Sec. to and controls *8 particular over the fact (A) presented. conflicts inconsistencies: situation here If Sec. be a valid statute which reasons, any or Art. For those unlawful makes on the left side covering 6701d is the highway when left side is not prosecution. clear and unobstructed for a distance of fifty yards, unlawful, then it is not under Appellant’s Rehearing Motion for On (A), drive on the left side of the highway long so is clear as side WOODLEY, Judge (dissenting). fifty for at unobstructed least one hundred expressed are those My views feet. opinion original herein submis- majority say upon 56 does Sec. Now what State, v. in Garrett 161 sion and is made unlaw- section it By that subject: opinion an we unani- 279 driven on the left to be a vehicle ful May 25, approved mously one hundred within of the which gave construction approaching from the of a vehicle feet in enacting 670Id, intent legislative and Sec. 56 Art. direction. opposite
603 (½) one-half Ann.Civ.St., has been to main-traveled was and Vernon’s portion roadway nearly Art. as as present time that did possible.” Ann.P.C., 801 Art. 801(A) express opinion upon I question no adjourned 6701d, V.A.C.S., whether legislature has met o-f Art. sufficiently opinion in the defines and makes an we handed down
since informations, yield for a including driver to “at least one- Garrett fail (½) half us, portion drawn before main traveled the one have been 801(A), V.A.P.C., possible” faith in nearly our Art. to a vehicle traveling opposite in the in the holding Garrett case. direction. just But how a of an driver automobile majority I adhere to the in the statement could be engaged perform- to be in the original which is in submission ance of the omission which is made an quotation fact a from v. Casares act, and thus make negligent his 144 Tex.Cr.R. killing of negligent another homicide of controlling and is the of law: “It second degree, I cannot see. permissible never on the left hand to drive side of the road there is obstruc- appears It majority, to me that the yards.” tion on within 50 their reasoning, confused the negligence which causes may death and which be an construing If we were in error in Art. act committed or a failure to 6701d, V.A.C.S., repealing as not may which unlawful, lawful or with the V.A.P.C., (A), -legislature could have performance act of which negli- may yet set us straight. gence occurs. It the latter which deter- degree mines the negligent homicide, provision If there be any which is allegation question. here in V.A.P.C., V.A.C.S., or Art. which it an makes offense to drive the left appellant side of
hand
engaged violating it when reason of negligence
his three lives were lost. majority say appellant do not was not law,
violating but hold in effect that alleged
the information should have JOHNSON, Appellant, Lee was not repairs, for construction or closed should engaged have Texas, Appellee. The STATE of the unlawful act now defined No. 29141. 6701d, V.A.C.S., supersedes (B) (A)). (not V.A.P.C. *9 Appeals Court Criminal of Texas. Oct. prosecutor envy attempts who I do charging information draw engaged in the violation of accused Article, which reads: of said proceeding in of vehicles
“Drivers pass direction shall each
opposite right, to the for not than one
having width more direction in each each of traffic
line give to the other at least shall
driver