Horace C. REDDING, Appellant, v. The STATE of Texas, Appellee.
No. 29759.
Court of Criminal Appeals of Texas.
June 25, 1958.
On Rehearing Oct. 15, 1958.
Henry Wade, Dist. Atty., Robert E. Lyle, Jerome Chamberlain and Merle Flagg, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State‘s Atty., Austin, for the State.
Our prior opinion is withdrawn.
Appellant was convicted under plural counts of the information of two separate offenses: (1) Operating a motor vehicle upon a public highway while intoxicated (
Count two was drawn under Section 40 of
We will now consider the questions raised as to count one.
One Thomas testified that he was seated in his parked pickup truck on the night in question when an automobile approached from his rear, sideswiped his pickup, causing considerable damage thereto, and proceeded on its way; that he started his pickup and gave chase; that during the chase the automobile hit two more parked automobiles and then ran onto a one-way expressway going in the wrong direction, and finally came to a halt when it ran over a curb and into a wall. Thomas stated that he approached the automobile, asked the driver why he had hit him and then run off, and asked for his name, but that the only reply he received was a threat which the driver made to kill him. He stated that he ran into a house, called the police, and upon his return the appellant drove away; that he again pursued him and the appellant again ran into the wall; that he again approached the automobile on foot, was again threatened, and then saw a squad car which he was able to flag down.
Officer Telson testified that Thomas flagged him down near the expressway on the night in question; that he found the appellant seated in the driver‘s seat of an automobile which had run over the curb while being driven in the wrong direction; that the appellant, when he got out of the automobile, walked with an unbalanced swaying motion, had an alcoholic smell on his breath, cursed the accident-investigating officer when he arrived, and expressed the opinion that the appellant was intoxicated.
Accident Investigator Graham testified that when he arrived upon the scene the appellant refused to give his name or display his driver‘s license, cursed him and the other officers, claimed to be a prominent doctor, and threatened the officers with the loss of their jobs. He stated that he found a partially empty bottle of whiskey on the seat of the appellant‘s automobile, arrested the appellant, whose breath smelled of whiskey, whose eyes were bloodshot, and who staggered in his walk, and carried him to jail, and expressed the opinion that the appellant was intoxicated.
Appellant, testifying in his own behalf, admitted having one drink of whiskey on the night in question, denied the presence of the bottle of whiskey in his automobile, claimed that Thomas had run into him, denied that he cursed the officers, claimed police brutality, and denied that he was intoxicated.
The appellant‘s wife, a patron of his barber shop and several friends testified that he was not intoxicated when they saw him earlier in the evening.
Appellant first complains of an instruction or admonition by the court. The only reference thereto is found in the transcript, not in the form of a bill of exception, but which, if we considered it as such, presents nothing for review because it recites that no exception was taken to the action of the court.
Bill of exception No. 2 relates to an oral motion to quash the information predicated on the contention that the complaint upon which it was based was sworn to by an incompetent person. A motion to quash must be in writing, but we note that there is an entire absence of any proof in the record that such is the case. If, however, we considered the objection as evidence, this Court has held, in Catchings v. State, Tex.Cr.App., 285 S.W.2d 233, that such a person is not incompetent.
Bill of exception No. 3 relates to the action of the court in instructing the jury not to consider certain testimony as to the appellant‘s good reputation from the witness Hawkins. Hawkins, upon cross-examination, repeatedly stated that he was basing his testimony on his own opinion rather than what other people in the community said about the appellant. We perceive no error in the bill.
By bill of exception No. 4 appellant complains that the prosecutor was permitted to bolster the witness Thomas. We cannot bring ourselves to agree. The appellant was merely asked why he did not call the police as Thomas had done. The record is undisputed that Thomas called the police and that the appellant did not. Bill of exception No. 6 relates to the same matter and is likewise without merit.
Bill of exception No. 7 requires a fuller discussion. On direct examination, the appellant testified that he had gone to the police station and had been permitted to make a copy of the offense report which the arresting officer had made in his case. At this juncture, the prosecution observed that they considered the evidence inadmissible but that they did not object to its introduction, and his copy was admitted in evidence. From the report, the appellant showed some discrepancy as to license numbers. On cross-examination, he was then asked if the report which he had introduced did not contain some other information such as that he had staggered, used profane language, and “refused test.” At this juncture, appellant objected and moved for a mistrial. The court instructed State‘s counsel not to pursue the matter further.
Since the appellant introduced the report in evidence and testified concerning a portion thereof, the State might then, under the terms of
The remainder of the jury argument complained of was normal argument in which the prosecutor urged the jury to accept the testimony of the State‘s witnesses and reject that of the defense, and we find no error therein.
The conviction under count one is affirmed, and the conviction under count two is reversed.
On Motion for Rehearing.
After further consideration, we have concluded that we were in error in our disposition of count 2 and therefore grant the State‘s motion for rehearing.
Prior to adoption of Sections 38, 39 and 40 of
Section 40 requires that in all cases covered by Section 39, supra, the driver of a vehicle involved in an accident should give to the occupants of the other vehicle certain specified aid and information.
The Legislature having created the misdemeanor offense of failure to stop and render aid after a collision resulting only in damage to another vehicle,
We need not here consider the effect of
We have re-examined count two of the information before us and have concluded that it charges the misdemeanor offense defined in Sections 39 and 40 of
We have examined appellant‘s second motion for rehearing and find nothing therein which requires further discussion, and same is overruled.
The State‘s motion for rehearing is granted, the judgment reversing the conviction under count two of the information is withdrawn, and the judgment as to both counts is now affirmed.
DAVIDSON, Judge (dissenting).
This case arose and conviction was obtained in a county court under an information containing two counts.
The first count charged the misdemeanor offense of drunken driving.
Inasmuch as there is a difference of opinion between my brethren and me as to the offense charged in the second count, the charging part thereof is here copied:
“* * * heretofore on or about the 23rd day of April, A.D.1957, in the aforesaid County and State, said Defendant was the driver and person in control of a motor vehicle, to-wit: an automobile, upon a public highway, to-wit: Pine Street, and said motor vehicle did then and there strike and collide with a vehicle occupied by a person, to-wit: Jenkins Thomas, and did then and there damage said vehicle so collided with, and said Defendant did then and there unlawfully fail to stop and did then and there unlawfully fail to give unto the said occupant of said vehicle so collided with the registration number of said motor vehicle driven by said Defendant and the name and address of said Defendant, at the time and immediately after said striking and collision.”
Appellant was convicted under each count of the information. His punishment was assessed at thirty days in jail and a fine of $100 under the first count, and a fine of $100 under the second count.
My brethren affirm the conviction under each count. To that affirmance I do not and cannot agree.
I base my dissent upon two cardinal propositions, these being: (a) that the information charged appellant with a felony in the second count and the county court, therefore, acquired jurisdiction neither of the person of the appellant nor of the offense charged therein, and (b) that there is no statute in this state which makes the
The Constitution of this state fixes the jurisdiction of courts of this state.
The first sentence in Art. 5, Sec. 8, Const., Vernon‘s Ann.St., says that:
“The District Court shall have original jurisdiction in all criminal cases of the grade of felony * * *”
A felony is an offense for which punishment in the penitentiary may be assessed.
One may be charged with the commission of a felony only by an indictment of the grand jury. Art. 1, Sec. 10, Const.; Kinley v. State, 29 Tex.App. 532, 16 S.W. 339.
County courts have original jurisdiction of all misdemeanors where the authorized punishment exceeds a fine of $200. Art. 5, Sec. 16, Const.
A county court has no jurisdiction of felony cases. Gates v. State, 151 Tex.Cr.R. 504, 210 S.W.2d 413; Johnson v. State, 77 Tex.Cr.R. 25, 177 S.W. 490; Hincy v. State, 96 Tex.Cr.R. 284, 257 S.W. 541.
Surely there can be no valid challenge of the correctness of the legal propositions hereinbefore stated.
Does the second count of the information in this case charge appellant with the commission of a felony?
In 1917, the legislature of this state created what appears in our penal code as Art. 1150. It reads as follows:
“Failure to stop and render aid. Whenever an automobile, motorcycle or other motor vehicle whatsoever, regardless of the power by which the same may be propelled, or drawn, strikes any person or collides with any vehicle containing a person, the driver of, and all persons in control of such automobile, motor vehicle or other vehicle shall stop and shall render to the person struck or to the occupants of the vehicle collided with all necessary assistance including the carrying of such person or occupants to a physician or surgeon for medical or surgical treatment, if such treatment be required, or if such carrying is requested by the person struck or any occupant of the vehicle collided with; and such driver and person having or assuming authority of such driver shall further give to the occupant of such vehicle or person struck, if requested at the time of such striking or collision or immediately thereafter, the number of such automobile, motorcycle or motor vehicle, also the name of the owner thereof and his address, the names of the passenger or passengers not exceeding five in each automobile or other vehicle, together with the address of each one thereof. Any person violating any provision of this article is punishable by imprisonment in the penitentiary not to exceed five years or in jail not exceeding one year or by fine not exceeding five thousand dollars, or by both such fine and imprisonment.”
By that statute it was made unlawful for the driver of an automobile or other motor vehicle to fail to stop after striking a person or colliding with a vehicle containing a person and fail to render to the person struck or the occupants of the vehicle collided with all necessary assistance.
A five-year term in the penitentiary was authorized to be inflicted for a violation of that statute.
The offense denounced by that statute, then, was a felony. Poenich v. State, Tex. Cr.App. 12 S.W.2d 208.
The construction which this court has placed upon that statute is that it is violated by either or both of two fact situations: (1) when the driver of the automobile fails to stop, the failure to stop constituting and being a violation of that
The second count of the information charged the violation of both provisions of the statute, directly charging therein that appellant
“* * * was the driver and person in control of a motor vehicle, to-wit: an automobile, upon a public highway, to-wit: Pine Street, and said motor vehicle did then and there strike and collide with a vehicle occupied by a person, to-wit: Jenkins Thomas, and did then and there damage said vehicle so collided with, and said Defendant did then and there fail to stop * * *”
As has been pointed out, the allegation of failure to stop charged a violation of the statute.
The duty to render aid and assistance arises only after the driver of the automobile has stopped. Unless and until the driver stops in obedience to the command of the statute, the further command of the statute to render aid is not subject to be complied with. Such further command, then, is a part of and inseparable from the command to stop.
Under all the authorities of which I am aware, including Willson‘s Criminal Forms, 6th Edition, Sec. 1480, the second count of the instant information charges a felony and a violation of
Notwithstanding these authorities, my brethren affirm this county court conviction under such information. If I understand the majority opinion, the holding therein is that the second count of the information charges a violation of Sec. 39 of
I cannot agree that
The offense created by
The correctness of my position is demonstrated when Secs. 38, 39, and 40 of
“Sec. 38. [Accidents involving death or personal injuries] (a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 40. Every such stop shall be made without obstructing traffic more than is necessary.
“(b) Any person failing to stop or to comply with said requirements under such circumstances shall upon conviction be punished by imprisonment in the penitentiary not to exceed five (5) years or in jail not exceeding one (1) year or by fine not exceeding Five Thousand ($5,000.00) Dollars, or by both such fine and imprisonment.
“Sec. 39. [Accident involving damage to vehicle] The driver of any
vehicle involved in an accident resulting only in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the requirements of Section 40. Every such stop shall be made without obstructing traffic more than is necessary. Any person failing to stop or to comply with said requirements under such circumstances shall be guilty of a misdemeanor. “Sec. 40. [Duty to give information and render aid] The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address, and the registration number of the vehicle he is driving and shall upon request and if available exhibit his operator‘s, commercial operator‘s, or chauffeur‘s license to the person struck or the driver or occupant of or person attending any vehicle collided with and shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.”
Sec. 38 covers only the failure of the driver of a vehicle which is involved in an accident where some person is injured or killed to stop and, after having stopped, to render aid and assistance as required under Sec. 40.
The offense there created is a felony and carries the same punishment as that affixed to a violation of
For one to violate that statute, then, he must be the driver of a vehicle—any vehicle—and as the result of an accident in which that vehicle is involved some person must be injured or killed.
I am convinced that Sec. 38 and
It is interesting to note that the information in this case did not allege facts showing a violation of Sec. 38. It did allege a violation of
Now what is the offense created by Sec. 39? It is this section which my brethren hold constitutes a partial repeal of
In addition to the above noted differences between the offenses created by
It is and would be very easy to say that the word “vehicle,” in its usual acceptation and meaning, includes within its terms “motor vehicles.” That is what my brethren hold when they say that
“Art. 6701d. Uniform Act Regulating Traffic on Highways.
“Article 1—Words and Phrases Defined
“Definition of words and phrases
“Section 1. The following words and phrases when used in this Act shall, for the purpose of this Act, have the meanings respectively ascribed to them in this Article.
“Subdivision 1—Vehicles and Equipment Defined
“Vehicles
“Sec. 2. (a) Vehicle. Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks.”
Such definition, standing alone, may have included motor vehicles within its terms, but the legislature not only did not intend that motor vehicles be included within that definition but it expressly said that it did not include that term, for in the same section and immediately following the definition of “vehicle” the legislature defined a “motor vehicle,” as used in the act, as follows:
“Sec. 2. (b) Motor Vehicle. Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.”
In plain, intelligible, and understandable language the legislature has said that, in so far as
The legislature did not stop merely with taking “motor vehicles” out of the general definition of “vehicles,” but, to make absolutely and doubly sure that the terms “vehicle” and “motor vehicle” were to be restricted to the meaning as expressed in the definition thereof, the legislature defined in the same Sec. (2) of the act, the terms “Motorcycle,” “School Bus,” “Truck Tractor,” “Farm Tractor,” “Road Tractor,” “Truck,” and “Bus.” In the definition of each of those terms “motor vehicle” is a part thereof—all of which demonstrates not only the intent but the express will of the legislature that a “motor vehicle” was not included within the definition of “vehicle.”
Moreover, this will of the legislature is further demonstrated by the definitions which it gave to the terms “Authorized Emergency Vehicle,” “Trailer,” “Semi-Trailer,” “Pole Trailer,” and “House Trailer,” as used in the act. In none of those terms does “motor vehicle” appear.
Notwithstanding the language of the statute and the express definitions contained therein, my brethren here hold that a “motor vehicle” and a “vehicle,” as used in the statute, mean the same thing and come within the same definition. Talk about judicial legislation and usurpation of legislative power by the courts: Here such are demonstrated in their rankest form, for my brethren not only refuse to accept the statute as written by the legislature but they rewrite into the statute that which is not a part thereof but is expressly contrary thereto. When my brethren hold that the term “motor vehicle” is included within the term “vehicle,” as used in Sec. 39, they rewrite those definitions and redefine the terms “motor vehicle” and “vehicle” so as to comport with their own idea of what those terms should be rather than what the legislature of this state said they were.
It is neither the business of the courts nor the prerogative of the judges of the courts to enter the field of legislation, to usurp legislative power, and to enact a law or laws according to their conception of what the law should or should not be.
It is the business of the courts to construe and enforce the law as the legislature has written it and not to write a law or, by the exercise of judicial power, to create a law.
When my brethren say that Sec. 39 prohibits the same unlawful act as does
I pass, now, to a discussion of the question of partial repeal of
In the passage of
“All laws or parts of laws inconsistent or conflicting with the provisions of this Act are hereby repealed * * *”
To be absolutely sure that all conflicting or inconsistent laws were repealed, the legislature expressly exempted certain statutes.
When my brethren hold that Sec. 39 is inconsistent and conflicts with
There is another and very potent reason why
Such was the offense created by
If the county court had jurisdiction under the information in this case to render the judgment that it did—and my brethren hold that it did—then
It is regrettable, to my mind, that
If my brethren are right, here, that a prosecution by information charging a violation of
That the information in this case was and is fatally defective because it charged the commission of a felony is directly supported by the case of Johnson v. State, 77 Tex.Cr.R. 25, 177 S.W. 490, 2d case. In that case the indictment charged a felony and a misdemeanor in the same count. The district court transferred the indictment to the county court where the conviction was had. The county court conviction was reversed by this court, with direction to the county court to transfer the case back to the district court, which alone had jurisdiction of the felony charged in the indictment.
Here, the same rule applies and, in addition, it will be noted that the prosecution, here, is under an information. There is no indictment in this case. The prosecution arose in the county court.
Because the county court was without jurisdiction to render the judgment that it did render in this case, this prosecution should be ordered dismissed.
I respectfully dissent.
Anastacio GARCIA, alias Eustacio Garcia, v. The STATE of Texas, Appellee. No. 29969. Court of Criminal Appeals of Texas. Oct. 8, 1958.