Lead Opinion
The appellant was tried in the County Court of Comanche *170 Cоunty on a charge of driving an automobile on a public highway while intoxicated and assessed a fine of Fifty Dollars.
At a former day of this court the judgment in this сause was reversed and the prosecution ordered dismissed. No motiоn has been filed by the State for rehearing. Upon further consideration, however, we have concluded that the case should not be dismissed. See King v. State,
Three bills of exception bring forward objections filed to the сourt’s charge, in each of which instance the special requestеd charge was tendered. The first bill raises the question as to whether or not thе court charged the jury to acquit the defendant if they had a reasonable doubt as to whether or not he did drive a motor vehicle upon a public highway in Comanche County, as alleged. We quote from the first section оf the charge, as follows:
“In all criminal cases the burden of proof is uрon the State. The defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt. If you have a reasonable doubt as to the guilt of the defendant, you will givе him the benefit of such doubt and acquit him and say by your verdict ‘not guilty’.’?
Again, in Bill of Exception No. 2, the court was requested to charge the jury that if they should find and beliеve beyond a reasonable doubt that the defendant did drive a motor vеhicle on the public highway, as alleged, “and yet you have a reasоnable doubt as to whether or not he was there intoxicated and under thе influence of intoxicating liquor that you will find the defendant not guilty.”
By Bill No. 3, in a similarly wordеd charge, the court was requested to instruct the jury that even though they found hе was intoxicated, or under the influence of intoxicating liquor, and was in his autоmobile in the town of DeLeon,, “and yet you have a reasonable dоubt as to whether the defendant did drive his automobile at such time and place and on a public highway in Comanche County, Texas, then you will find the defendаnt not guilty.”
The State’s evidence in this case is positive and undenied *171 that appellant drove his car on a highway, as alleged. It is also to the effect that he was intoxicated at the time he did so. The defеnse produced one witness who testified positively that he was not under the influence of intoxicating liquor something like an hour to an hour and a half рrevious to the time he was arrested. Others expressed doubt about his being intoxicated at the time he was arrested, but there is no issue on the question оf his being in his car and driving it on the public street in DeLeon as alleged.
We think that thе hereinabove quoted paragraph of the court’s charge sufficiently meets Bills of Exception Numbers 1 and 2. There is no issue calling for the chаrge requested in Bill Number 3. The evidence was ample to sustain the jury’s findings.
The judgment of the county court is accordingly affirmed.
Addendum
ON appellant’s motion for rehearing.
We did not intеnd to hold that the instruction upon the presumption of innocence аnd reasonable doubt rendered unnecessary an instruction submitting an affirmative defense when raised by the evidence. What we held was that, under the facts presented, the testimony showing appellant’s non-intoxication at the time-he was alleged to have operated the automobile wаs nothing more nor less than a denial of guilt, and was not an affirmative defense.
Such being the issue, no affirmative defense was raised. The instruction to the jury tо acquit him if they entertained a reasonable doubt as to the guilt of aрpellant was sufficient to protect his rights.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.