*1 Bill No. 15 relates to statements made to Policeman governed ruling forth on Dale set herein Bill gestae 4,No. and relates to the res statements made to Officers Dale and Scott. theory appears
The state’s to have suspected keeping enamored of the deceased him of Negro company girls; of other she forbidden him to night question; upon going leave cafe on the starting engine thereof, out to his truck and followed she him; him and shot that he fell out of truck died. soon Appellant’s they defense quar- was that had had numerous ; down; rels that deceased struck had often her and knocked her her, that fighting scratched they he had her bit and that were thus cafe; outside the that he knocked her down and tore clothes, unconscious; upon recovering her and she became consciousness, again attacking her, he was shot him she once; truck, engine that he walked over to the started the against ground; and then fell the door and out onto the that she shot him in self-defense. satisfactory
The court’s seemed to have been pellant, objections appearing record; no thereto right and we guilt think had a base their verdict of them. before evidence specifically expressly All bills written over- ruled. judgment will affirmed. Long
Harold v. State. 24686. March No. 1950. Rehearing May 17, Denied *2 acting all Fullingim, Simpson, Clayton & E. T. Miller and Amarillo, Simpson, E. A. Attorney, Cox, County Attorney, Sharp, L. Joe District Joe Blackburn, Plainview, P. State’s George Font, H. M. La and Attorney, Austin, state. Judge.
WOODLEY, charged count of the indictment which the case was submitted with the offense of malice, growing murder without out of a collision by appellant, driven the Cadillac car and a driven between Rogers wife, by one in which his the deceased Mrs. Mattie riding. Rogers, part of the indictment
Such count reads as follows: * * * Long unlawfully, “Harold did then and there while in- intoxicating liquor, toxicated and under the influence of drive operate vehicle, automobile, upon high- public a motor an * * way *, of this State and did and there in the execution act, through accident, of said unlawful mistake and kill Mrs. driving Mattie and then and there said automobile into causing occupied by it to collide with the automobile *3 Rogers.” said Mrs. Mattie upon was first convicted of such offense trial a County,
in judgment, upon appeal, Swisher and this court reversed the being opinion reported Rep. the in 152 Texas Crim. 356, 214 S. 2dW.
Thereafter, being changed, present the venue the conviction County. punish- was a trial in Hale The maximum years penitentiary against ment of five in the was assessed appellant on each trial.
The material appeal facts are in stated the former and seem substantially to the same as shown this trial.
Upon present trial, charge, in the court’s provisions C., informed as to the of Art. Ann. P. Vernon’s punishment malice, and as applying to for murder without and in law, the court instructed as follows: Now, you “4. beyond if and a find believe from evidence reasonable doubt that the defendant was intoxicated or under intoxicating liquor the influence of at the time of the collision Rogers, occupied by of his charged with car the car Mrs. Mattie as indictment, you guilty in will find and him assess punishment penitentiary in for a at term confinement exceeding two, years you and if five not less than but have a as to whether he was intoxicated or under reasonable doubt intoxicating you guilty. liquor the influence of will find him not however, though you charged, “You are that even further beyond a the defendant find believe reasonable doubt intoxicating liquor was intoxicated or under the of influence when in his automobile collided with the automobile which riding, you if find and the same believe that under reasonably prudent person or similar circumstances a who was intoxicating liquor not intoxicated of you nor under influence collision, could not have have a avoided the or reasonable thereof, guilty. you doubt will find the defendant not you “4a. If find and believe from the evidence in this case immediately prior at to time collision the pavement question slipped in as he defendant’s car off on-coming Rogers car, approaching when he pavement attempted pull reason it back on the some car out and while unknown to the defendant went of control producing Rogers’ death out control collided with the thereof, you Rogers, you a of Mrs. have reasonable doubt or guilty.” will find the defendant not Appellant excepted as whole and addressed such many exceptions particular paragraphs above out. set whole, decisions, will Under the be construed light. exceptions v. considered See Ekern 2d 412. Cr. W. originally
Paragraph 4a was not contained exceptions response prepared, added but was paragraph of request charge appellant. The contention correct, will, *4 contrary paragraphs, to the other is circumstances, Warren of no avail to See under 631, 122 2d 301. S. W. v. 135 Tex. Cr. lodged against charge, as we understand complaints The them, in effect: charge a conviction without
(1st) authorizes That finding the intoxication a connection between jury’s of causal the deceased. appellant death of and the ultimate of charge that authorizes (2nd) too restrictive in it That the finding conviction by a avoided sober could have been jury that the collision found circumstances, re- without same or similar under the driver appellant drove finding by otherwise quiring a car. with the other it to collide car into and caused his adequately was not appellant’s affirmative defense (3rd) That charge Paragraph 4a. by in submitted
591 pointed opinion As out in the appeal on former Rep. 356, Crim. 214 by 2d the defense W. raised testimony was that appellant’s collision was the result of losing of here, control the car. testified in effect trial, in the former did not he know exact his cause of losing beyond control of the facts testified to him comprehended charge. paragraph in 4a of The effect testimony beyond of was that the accident was his control independently sobriety. resulted of his condition of This testimony defense was in submitted accordance with the of pellant raising response request and in issue of overruling exceptions. in his No error is in shown exceptions raising this contention. appears plain It paragraph paragraph the first charge, standing alone, subject exception comprehend it does the element of causal connection between the intoxication and the death of the deceased. charge
The as a whole must be condemned for failure to element, paragraph include that unless the second paragraph 4 is sufficient to embrace element of causal connection. long holding
It has been the of this court that in cases of this character causal connection must be well shown as as the death committing accident while the accused was the offense driving while intoxicated. Decisions that effect are cited appeal on the Rep. former Texas Crim. S. W. 2d 303. very The the indictment is that killed driving causing deceased his automobile into and it to
collide with the other automobile. question therefore be determined is whether or not paragraph Paragraph second 4 of the court’s
requires finding by sufficient the intoxication resulting caused the collision in the ultimate death of the deceased. *5 beyond dispute
It is shown without and the collision highway between the two cars occurred on the cars while the traveling directions; opposite were the car in which the riding being proper deceased was driven in a manner on righhand car, highway; its side of the with wheel, appellant’s such other car on left-
at the collided with highway, death of side and that hand resulted from such collision. (1) disputed or not issues were: whether time, (2) whether such collision was at intoxication, independently of such or resulted
attributable such intoxication. testimony in the record it was
There was to the effect snowing; slick, highway wet icy; wiper appellant’s on car was not and that the windshield operating properly. by anticipated who
These must be one conditions such as operates public highways. a motor vehicle 599, 9, 2d In 143 W. Brewer v. Cr. court, Judge Beauchamp, speaking said: for this dangerous weapon have held that an automobile “We se, at per placed under the control of ‘alcohol but when highway, gasoline on the wheel and in the tank’ and driven may agreeing thereto so uncertain the owner results are though resulting him- responsible death as he held had, hands, guided wheel.” self with his own case, Judge opinion on re- And in the same Graves Liotard, hearing quoted approval Ex Nev. with from Parte 960, 961, follows: “One who 30 A. L. R. P. dangerous rights instru- so others as to use a careless of the drink, permits mentality others incapacitated or who while shown, pay so, consequences. He must to . here invites the do penalty.” Having highway intoxi- while driven his automobile cated, jury, appellant under the law was bound as found highway, regardless conditions to drive such car though prudent weather, manner as the same car or entirely he was sober. pave- wet, icy slippery or If the resulted from the collision falling snow,
ment, faulty condition or fallen under wiper, of control or even of the loss windshield reason defense, yet, appellant’s submitted as conditions circumstances under' those collision could have been avoided intoxicated, rather than had been sober
593 and the intoxication is established connection causal between resulting death. and the collision finding jury. charge A to the the court’s effect of is the Such could have as accident such was an collision required that the driver. condition except avoided appropriate more Though it would have been we believe jury require toas framed his to have so court to caused it into or automobile appellant his find drove to riding, we was deceased in which automobile collide with the include given to was sufficient as that the convinced intoxi- necessary connection between element of causal deceased, and ultimate death appellant and the cation of entirely an was accident collision that the to the defense submit intoxication. with such from and disassociated disconnected overruling of his Exception 1 Appellant’s No. Bill of presents no therefore many exceptions to the court’s error. reversible argument attorney effect
The the district that in which collision with drove automobile into his riding deduction fair reasonable state, appel- standpoint of the from the evidence from the argument complaining of Exceptions Bill of No. 3 lant’s is overruled. Tex. Jur. Sec. See argu- complains Appellant’s Exceptions Bill of No. attorney the maximum ment of the district to the effect that argu- punishment years inadequate, further and the of five The ex- ment to the effect that no remorse. showed argu- ception the latter taken this bill was as to as shown arguments only. persuaded either ment or are not that such We attorney improper. them well the court were The as opportunity had the at the time to observe right demeanor, attorney had the comment judge cor- to consider such demeanor and to argument. attorney rectness of deduction drawn in his argu- remaining exception complaining The bills of special prosecutor ment of the and the admission of evidence perceive have been considered and we no reversible therein. error judgment therefore affirmed. Opinion approved the court. APPELLANT’S FOR
ON MOTION REHEARING. *7 Judge.
DAVIDSON, again light have reviewed the entire record We contentions, pellant’s and remain convinced that correct con- originally. purpose useful clusion was reached No would be writing further. served rehearing motion for is overruled.
Opinion approved by the court.
Rudolph Maynard v. State. No. 24700. March 29, 1950. Rehearing (Without Motion for Denied Written Opinion) May 17, Flanary, McKinney C. McKinney, Cooper, V. Jr. and &