*1 470 applied early
A v. likе rule was in the case of Adams App. 16 Tex. 162. animals the same Two were branded by time one not their owner. Conviction for the crime of brand- ing branding prosecution one of them held for to bar other. jurisdictions
Cases from other cited to the same effect are C.J.S., 423, 22 p. forging 282. In one a conviction for Sec. forgery an prosecution instrument was to bar held for another single instrument part at the same a a time as transaction. In another it was held that where the defendant convicted forging for pro- a name to a сertain instrument he cannot be forging signatures secuted for other to the same instrument. holding forged Another case is cited that were several papers person, are uttered time at one and to the same it is one transaction, uttering and a conviction for one is a bar uttering trial for another.
The state introduced statement of to the effect recording up fee was sometimes worked another deputy put clerk and Appellant it on the sheet. contends proved outstanding state thus hypothesis entry may lаid the indictment have been furnished some- by appellant one else and entered knowledge without that such entry was false. We cannot sustain point such contention but out that why
illustrates the evidence as to all of the false entries made at the time prove was admissible to intent.
The evidence jury’s is suficent to sustain the verdict and we find no reversible error. judgment is affirmed. Spraglin
Charles v. State 31,181. No. March 1960 Rehearing May 11, Motion for Overruled *2 DAVIDSON, Judge, dissented. Gilmer, Garrison, for Holt,
Florence, by F. L. Garrison & appellant. Austin, Attorney, for the state. Douglas,
Leon State’s Judge WOODLEY, 802c Article malice under without
The offense is murder years. V.A.C.C.P.; punishment, five the yard of the in the front boys playing ball Four were soft too ball boy hit the boys. with the bat The home of one of the hard, boy the ball followed in the road. One and it out went by appellant, who the driven was hit an automobile locality limits, city Though not within intoxicated. residential. or not whether presented is question difficult
The most intoxication between is shown causal connection accident. quotation from following in the found rule is correct 366, 369: 587, 229 2d Long R. S.W. v. 154 Tex. Cr. in highway while automoble “Having driven his under jury, appellant was bound toxicated, by the as found regаrdless conditions law such car to drive though he as prudent manner weather, in the same the car or entirely sober. icy pave- wet, slippery from the resulted “If the collision the wind- faulty snow, condition ment, falling or fallen wiper, shield or even reason of the loss of control under the defense, yet, conditions submitted if collision such could have been avoided under those circumstances if intoxicated, had been sober rather than then causal connection is established between the intoxication and the and the collision resulting death. charge jury.
“Such is A the effect of the find- court’s to the ing required that the collision was an accident such as could except been avoided for the intoxicated condition of driver.”
Applying us, the appellant rule stated to the before facts having highway driven intoxicated, while as found jury, regardless was bound under the law to drive car such of the prudent though conditions in the same manner as he was entirely sober, boy and if the run- accident resulted from the ning path into the driving, the automobile if he was it could have been avoided under those appellant circumstances if had been intoxicated, sober rather than then a causal connection established between the intoxication and the accident and result- ing death. jury having found that intoxication “caused substantially accident, contributed to cause” the court
must light view the evidence in the most favorable state disposing in the above issue. Greiner v. Tex. R. Cr. 479, 249 601, 604, S.W. 2d and cases cited.
Miller, year a 29 employee old Company, of Lone Star Steel happened passing to be automobile, traveling his from west to east. He boys playing saw the highway, south of the saw the pass ball immediately autombile, back of his and saw the de- pursuing ceased moment, it. At this he saw the travel- automobile ing from west, east which was later shown to have been driven appellant, 200 feet approaching ahead and him. Through his rear mirror, view Miller saw auto- mobile strike the child and knock him boy into the air. The body was dead when his came to rest more than a hundred feet away. No skid marks were highway, found on and the оther they witnesses said heard no sound and saw no indication that appellant applied fact, his In brakes. testimony, his does not claim that applied he his brakes.
Appellant gave several versions the accident. repeated- He ly crossing testified that the child was from north to road evidence, south. All of testimony, save was to the effect boys that way playing yard high- were ball in the south chasing and that in the ball across the the deceased crossed from south to north.
Appellant testified that he could not see the child before he him; struck air; up when he him in the first saw the child was boy he also testified that ran across about 8 feet front of him pulled boy and when he saw the him and tried to miss right;
to the also that hit could not before he the child he “Q. Yes, see it you and: theWas car between A. sir.” it? On cross-examination testified that when he saw boy right highway running “he out in the road “Q. right.” from obstructing your Was view? there car A. car, There was trailing a car in front me. I behind him, “Q. yards now, him; you about 20 behind All didn’t No, sir, see the child until hit? A. didn’t.” Appellant later, cross-examination, pulled on that he testifiеd *4 right boy to the I after “the ran and struck out the road had him.
“Q. eight steps you? eight. He was in front of A. About “Q. right you coming pulled And to the he was from the and right coming you in the A. I direction he was from ? will tell * ** truth, just exactly I don’t know which . “Q. coming way you? You don’t know whch he was do from No, sir, A. 1 don’t.”
On re-direct examination further testified: “Q. Yes, Charles, you frightened sir, were at that time? A. I was. “Q. just exactly happened you Do know how the matter out * * * No, sir, A. I don’t
there? . “Q. you meeting anywhere, Do remember car out there sir, A. No, I don’t. Charles?
“Q. meeting No, A. You don’t remember a car? sir.” striking after appellant, case was evidence Other speeded highway of the child, to the shoulder drove on away. half mile some up, stop he was and did not until in evidence introduced statement was
Appellant’s written drive get Mason I stopped tried he said which “When do it.” the car but he wouldn’t “Q. Mason Was testified: occupant of the car
The third was.” A. He sure occurred? at the time this collision drunk straight going the car was also testifed This witness boy was before to left or ahead and had not turned struck. did testimony that he analysis, appellаnt’s
In its final he automobile happened other than not know what no made hence he did not see and struck a child but only the child striking. not see He not did effort to avoid opposite traveling in the meeting autombile not remember did direction, If, as view. his which it is contended obstructed ap- yards ahead testified, automobile there was another not have obstruct- pellant traveling it could in the same direction high- boy from side as he ran the south ed his view of way. hardly eliminated be Appellant’s condition could intoxicated striking appellant’s failure to see the child before a cause for moving
him, properly judge the child was the direction speed he veered to the left or slackened and the distance. Had child, accident could seen the at the time he should have been avoided. *5 find jury to the was authorized We have concluded that striking appellant he could have avoided that had been sober the child. support
Having is sufficient to concluded that the evidence conviction, to a of some we address ourselves discussion court appellant’s that other contentions. He first asserts jury failing his affirmative defense erred in to submit to the right his front fender of the deceased child ran into the that questions and automobile. He bases contention isolated his boys during adduced the cross-examination two of anwers playing They ran were ball. both testified that the deceased who
475 highway chasing got out into the the ball almost be- across they “got fore he hit.” it is true that on cross-examination While being answered in the if the deceased affirmative when askеd running right had run into the front fender of the car as he was right after which the ball and even that it was the side of the car into, bring he had run that there we cannot ourselves to conclude theory supported was evidence that a defensive would highway, that around and deceased had crossed the turned right ran back into testimony All the side of automobile. impact right point front focused the at the fender and hood and indicated that the deceased was almost across the road when he It obvious from their entire was hit. is testimony rеlating that the witnesses were the fact that nearly edge pavement deceased at the of the when he was was automobile, hit fender of which was traveling in far lane of traffic.
Appellant’s complaint the refusal of the court next relates to day Lawton, companion permit appellant’s to on the witness his question, driving testify in a in that was cautious drinking. just Prior manner and a man had not who been questions that being propounded, had testified such Lawton proper in per hour and his miles objections questions called lane of traffic. The state’s that such for a conclusion of the witness were sustained. adopt Judge v. Davidson Williams
We words 802, when, speaking of a similar 54 Tex. Cr. R. S.W. rejection opinion of the question, are of that he said: “We require testimony, error, importance to if is not sufficient judgment.” a reversal of the complaint portion
Appellant’s is addressed to last testimony of Officer which said Walker breath, patrolmen liquor people’s conclude often smell on charges. objection they and file no are not intoxicated leading, only question suggestive contradic- that the error, ground prior testimony. If for reversal. tion error, judgment Finding of the trial court no reversible is affirmed. Judge, (dissenting).
DAVIDSON, *6 undisputed that facts show deceased I am that the convinced accident, of an unavoidable death the result came his highway brought by chasing paved about his a ball across a by path oncoming appel- automobile driven and into the of the lant. my affirming
I am also that this conviction convinced theory upon brethren have done so the erroneous guilty negligеnt homicide. undisputed them: Here are the facts as see highway sixty paved feet The accident occurred running width in an The witness and east-west direction. Sunday highway. On that Williams lived on the north side of the boy, deceased, eight-and-a-half-year-old white afternoon the parents he met went with his to the home. There Williams’ boys age. They play ball three other decided to soft about his Rider, highway yard across of Jimmie one went the to the boys, highway. playing the of the and soon started soft ball near highway, Rider hit the ball and the deceаsed towards by chased it. At the witness time an automobile driven traveling along highway— Miller east the south side boys playing— which was on the side nearest were where passing. time, appellant’s car, traveling At the same west side, approaching. on the north The ball was knocked onto highway passing and to the rear of the Miller car and oncoming appellant. front car driven As the deceased pursued ball, still chased and he ran in front of opposite automobile and as he reached north side car, was struck side of body being something hurled over a hundred feet. Floyd, boys participating The witness Don one ballgame, gave comprehensive what I consider the most description happened, of what when he testified as follows:
“(Q And as the ball left the bat and started out across the (deceased) boy do?) road what did the McCollum A He started after it.
“(Q running ball, A right?) He started after Yes, sir.
“(Q straight Did he run across the road as the ball was going road?) across the A Yes, sir.
“(Q Right ball?) Yes, A. sir. after “ Yes, car?) A sir. (Q right And did he run front “ Yes, (Q car?) A right Ran sir. front of the boy “(Q Don, you say, was from How far wоuld right it?) road, front of ran into the the car at the time he No, sir, right A he wasn’t at it. Well, “(Q Well, might have been feet?) A it or four five
that far. “ Yes, (Q might far, right?) He A sir. been that “(Q Don?) Yes, you A sir. That accident excited didn’t it screeking “(Q hearing You don’t recall brakes now anything else?) No, A sir.
“(Q Well, you have noticed could it have done that and excitement?) A I due to the don’t think so. “Q so?) No, A You don’t believe sir. boy ran
“(Q Well, instantly after the McCollum almost ball, you say in front following he ran into the road car?) Yes, A of this sir. immediately the road
“(Q entered He struck after he he?) nearly the other side A made it across to wasn’t He road. other side.
“(Q Sir?) nearly A it across to the He made “(Q it?) No,A sir. But didn’t make n ‡ n n n n Yes, somewhere?)
“Q hedge A sir. there a there Was “Q. hedge with located And where was the reference road across the the road and this child ran out into where pretty close following ball?) A It out there was located where he ran out.
“(Q words, hedge there and he In other there the road pretty hedge ran out into at the time he close to *8 ball?) Yes, A after the sir.” in front of this car driving undisputed appellant The evidence showed that was fifty speed at rate of of about his automobile the time at a forty speed per placed the miles hour. One rate witness appel- per placed speed miles hour. No witness the rate fifty per car at more than miles lant’s hour. speed sixty per over
The maximum rate of miles hour highways applied highway. state to this indicating appellant applied There were no skid marks that striking on his car before The evidence the deceased. brakes appellant’s traveling straight that shows highway car was down striking when the deceased was struck that after impact him appellant’s and as a result of the to avoid effort striking him pavement. the car ran off the side of the in appellant’s
The state introduced confession written evidence, which confession contained the statement: driving
“I going was Mt. the car and out as—were got just Pleasant in I a child ran out front of me before to Cecil Miller’s store and hit him the car.” with
The state’s evidence was sufficient that show intoxicating liquor. under the influence of Testifying witness, apрellant having as a admitted drunk day some intoxicants in earlier but denied that he was under influence thereof. His entire defense that suddenly deceased ran front of his automobile and that powerless prevent collision, although he tried twenty- striking Appellant was, time, avoid the child. at that six-year-old Negro man. good reputation
Several witnesses attested peaceable law-abiding citizen. contradicting
The reputation. state offered no evidence that insufficiency support of the evidence to the conviction absolutely lies the fact there is no causal connection striking between the accidental of the deceased and alleged intoxication.
The rule it is well-established that of this nature cases enough driving is not the accused is intoxicated while car, but such intoxicated must cause the death party. other judge submitting jury,
In this case to the learned trial correctly recognized the rule mentioned when he instructed jury guilty operating that the if he was would be operated automobile manner as would have been such liquor intoxicating one not and that under the influence of *9 jury they appellant the could not convict unless believed Among attest- intoxication caused the accident. authorities ing State, following: 121 Tex. the rule stated are the Norman v. 433, State, 1051; R. 52 Burton v. 122 Tex. Cr. Cr. S.W. 2d 227, 363, 813; State, R. R. 55 S. W. 2d Jones v. Tex. Cr. 127 386, 683; State, 2d W. 75 S. W. Collins v. 130 Tex. Cr. R. 94 S. 194; 443; 62, State, 2d Totten v. 134 Tex. R. 113 S. W. 2d Cr. 573; State, 59, and Johnson v. R. 216 2d 153 Tex. Cr. S. W. State, 479, Greiner v. Tex. R. 2d 601. 157 Cr. 249 S. W. 802c,
In order to sustain a conviction under Art. Vernon’s (a) C., prove following P. the state must essential elements: driving by upon public of a motor vehicle accused highway, (b) driver, (c) of thаt the accidental the intoxication by or mistaken commission of another the intoxicated driver driving act which struck act than the mere of the automobile act, deceased, (d) and the other and caused the death by being by mistake, the intoxi- accident or caused committed cation of the driver. Long v. by what court
Such is made manifest said State, R. 2d 303: 152 Tex. Cr. S.W. finding by proof
“Intoxication at the time and or instruction, by jury the Court’s that there was a death under support will abstract form a conviction. death not proof made be the of the intoxication and must be must result jury thing a causal of that which worked and submitted to between the intoxication and the death.” connection suggestion in the evidence this case There is not the least just not death of the deceased would have occurred wholly and at the time as did had been cold sober entirely degree and of intoxication. without being true, has not shown that Such the state of the deceased. brought intoxication caused or about death finding that My not brethren affirm this conviction by a mis- by or the death of the caused accident deceased was 802c, by Art. appellant, expressly provided taken act of the by C., was occasioned Vernon’s but that the cause death P. failing keep a passive negligence the proper by lookout the deceased before which he would seen striking striking him, failing him because to avoid veering slackening speed not the automobile to the left or being child,” at the time “he should have seen the avoiding sober when striking the automobile at the time and thus words, according majority opinion him. In other to the negligence that caused intoxication was act death of the deceased. ago, twenty-five years I call attention to the fact that over court, prosecutions when of this nature first came before this negligence negligent it was held that of the accused acts charged. part could be no of or enter into as here an offense such *10 State, very 227, v. Jones 127 Tex. The Cr. R. S. W. 2d 683. thing my writing which brethren are here into the law—that is, upon or the instant conviction is authorized active passive negligenсe—was rejected rejected there and has been all times since then affirmance of this until the case. reasoning adopted
The made behind the case was and Jones C., applicable prosecutions 802c, to Art. P. in under Vernon’s State, Johnson v. 153 Tex. Cr. R. 216 S. 2d 573. W. (Art. 802c) expressly by The statute terms excludes the its negligence part of idea on the of the accused as an element thereof. The statute reads as follows: or
“Punishment of intoxicated driver involved accident doing act otherwise felonious.
“Any any person operates or or who drives an automobile upon any public other motor or in this vehicle road any alley upon place or or street or other within city, incorporated village, person of an or limits town while such liquor, intoxicating is or of intoxicated under the influence driving motor operating while so or other such automobile through vehicle shall act which accident or mistake do another voluntarily felony, punish- if done be receive the would a shall felony actually ment to affixed committed.” Every necessary is and act to to be done violate statute positive negative or distinguished must be a act act as from a driving failure to act. intoxication of an automobile and the and, addition, doing of the driver must be shown act other than that of intoxicated must be shown while before that statute is shown to have been violated. keep a passing negligence—such to
Thus acts of as failure lookout, stop, to avoid failure to veer or turn or or failure being coming or accident could never within as be construed part 802c, of Art. P. C. Vernon’s homicide, as negligent If this to be convicted my ought done, contend brethren to be indicted have here and tried for that offense. charge appellant with
The indictment this case did not negligent charge homicide. Nowhere in the court’s jury, question appellant’s negligence nor submitted to the guilt jury required were the or determine his authorized to negligence part, especially those because acts of on his my Indeed, appel- which brethren affirm this case. when this opinion time lant that will be the first receives this case that either he notice that he or his counsel will have had failing being lookout, failing stop, failing keep tried for veer, failng to avoid the collision. remembered, negligent also, It must be offense misdemeanor, *11 penitentiary a term in the can homicide is a and here, Yet, appel- not of the law. be assessed for such violation penitentiary year negligent goes lant to for homicide five for causing the death of the deceased. Regardless things else, of all there remains one fact situаtion precludes that an affirmance this conviction: refer to of must, guilty fact for in addition to be driving intoxicated, accidentally “do an- the automobile while accidentally, other act” which if he had not done ally, but intention- guilty him of without malice. would have rendered murder is, killing voluntary The crime of murder—that an intentional or negligence. upon —can not rest the reason for Such is negligent statute on homicide. any
This record which will be searched vain for evidence doing act, any accidentally shows the other either оr intention- ally. hardly doing The failure to act could be as the construed positive of a act. 802c, C., part
Art. P. Vernon’s is no of homicide law provisions may this state. applied thereof be arson, murder, crime of assault with intent and to and may all other by driving felonies which be and committed operation public highways of a upon motor vehicle special state. It is a statute which as a crime and denounces only makes expressly prohibited thereby. unlawful the acts purpose The sole punish and effect Art. 802c is to оne who, intoxicated, while public drives an automobile by doing by accidentally of another act or person. mistake kills another Then the death of the deceased must be result of an accident or mistake. It can not result negligence from either or an intended act.
As demonstrating conclusion, correctness of that one, necessary should be only to call attention to the fact that if driving voluntarily— automobile, intoxicated or sober while an is, intentionally person guilty kills another he is of murder. 218, Cockrell v. 135 Tex. Cr. R. 117 S.W. 2d He is 1105. guilty violating Art. 802c.
Proof by that the death of the deceased was caused accident or mistake under such circumstances would constitute a com- plete defense, by because no act done accident mistake is except offense specially provided certain cases for where degree there has been a negligence of carelessness or which regards 39, law as criminal. Art. P. C. therefore, It plain, purpose Art. intent of
802c, C., punish Vernon’s P. is to one for his accidental acts intoxicated, committed deprive while and to him the right given by C., P. Art. under which no act done punished accident 802c, could be as a crime. Under Art. the act which causes the person death of the must be done accident *12 proof, Art. 802c imperative. or such mistake. Such is Without has not been shown to violated. be descriptive of the individual
The intoxication of the driver is applies. which to whom the statute It is the fact of intoxication causing insist, away act defense, as that the takes Generally, can or mistake. intoxication death was аn accident P. crime. not be a defense to Art. Vernon’s C.
To me it is clear—and I have endeavored to so demonstrate C., 802c, P. occur of can not —that a violation Art. Vernon’s accused, accidentally by mistake, proof did without that act, of a motor other than and addition to the intoxicated, which caused the death of the deceased vehicle while deceased act the death of the but for which other and additional would not have occurred. absence, proof act.
There is an utter of of such here My suggest brethren intoxicated precluded preventing from the accident extent that he was child failure to see the his intoxication was the cause moving and judge and to direction which the child was the distance he was from the automobile. the extent
What does record show to be place, at In intoxication the time? the first the sheriff county, taking appel- arriving at the of the accident and scene only custody, permitted lant but directed into county drive the of the accident to the automobile from scene jail. jail arriving, appellant placed in Dangerfield. On readily taking test. Appellant to the of a blood consented subsequently analyzed for content His blood was alcoholic Safety, Department chemist for of Public who testified follows: present
‘T made of the alcohol in this a determination major by distilling quantity specimen off the alcohol from the particu- the blood and found the alcoholic concentrate specimen per by weight. lar to be 0.21 cent alcohol in-
The witness further tеstified one was considered per toxicated who had a blood concentrate alcohol 0.15 cent. words, standpoint appellant’s In from a scientific intoxi- other *13 484 per appellant
cation was 0.06 cent in If excess of normal. had very been intoxicated much is hard that the sheriff to believe would have directed him to drive the automobile before the blood sample sug- was taken. The fact that the sheriff did so direct gests appellant point was not intoxicated to the that he did not have the normal use his faculties.
If appellant criminally responsible for the death richly the child he punishment jury deserves the which the upon. hand, decided On appellant the other if crimin- ally liable for the child’s death ifor he has not been tried and convicted ought accordance required with law he not to be to serve that ground. sentence. There is no middle There is no place, here, extenuating for circumstances.
Having concluded from the record before me that the de- ceased did not come to his death as the result of the criminal agency act or and that has not been tried and law, convicted in accordance my duty with it is say duty so. performed. This
I dissent.
Marie Elizabeth Waite v. State 31,775.
No. March Rehearing May 11, Motion for Overruled