47 S.W.2d 320 | Tex. Crim. App. | 1932
— Conviction for aggravated assault; punishment, confinement in the county jail for a period of thirty days.
A jury was waived, and the case tried before the court.
Appellant moved to quash the information, which followed the complaint, on the ground that same was vague, indefinite, void and violative -of article 6, P. C. The charging part of said information is as follows: That said Warren Young “did then and there drive and operate a motor vehicle, to-wit, an automobile, on a public highway, to-wit, Robbie Street, in the City of Houston, Harris County, Texas, and did then and there commit an aggravated assault in and upon the person of Ralph Janicke, by then and there willfully and with negligence colliding with and causing injury less than death to the person of Ralph Janicke.” The information is sufficient. Hernandez v. State, 112 Texas Crim. Rep., 363, 16 S. W. (2d) 817, and authorities cited; Curtis v. State, 104 Texas Crim. Rep., 473, 284 S. W., 950; Ex parte Mooney, 106 Texas Crim. Rep., 156, 291 S. W., 246. There is nothing in the opinion in Brumley v. State, 115 Texas Crim. Rep., 362, 27 S. W. (2d) 810, in any way contrary to this view. Under the terms of the complaint in that case, it was perfectly apparent that no knowledge was thereby conveyed to the accused of the manner, means or instrument with which the state would contend the alleged assault was committed. For aught otherwise appearing in the complaint in that case Brumley, — while operating a motor vehicle on a public highway, — might have shot Mrs. Connel with a gun or struck her with a club, or have thrown her from the car. We did not intend by any expression in the opinion in the Brumley case to depart from what we understand to be the rule already laid down in such cases, namely, that a complaint charging that A, while driving and operating a motor vehicle upon a public highway, did make an aggravated assault upon B by then and there wilfully and with negligence colliding with (or otherwise describing what actually occurred) the person of said B and causing injury less than death to said B, etc.
As part of his motion to quash appellant set up that the terms of article 1149, P. C., 1925, are vague, indefinite, and violative of the terms of said article 6, P. C. Examination of said article 1149 shows that a part of its definition of aggravated assault is that the act done must be “Wilfully or with negligence, as is defined in this title in the chapter on negligent homicide.” Article- 6, P. C., expressly follows looking to “some other written law of the state,” in order to ascertain whether a statute under consideration be deemed indefinite or of doubtful construction.
Appellant also urges in his said motion to quash that the chapter on
We might here say, following Judge Davidson in Tarver v. State, 83 Texas Crim. Rep., 275, 202 S. W., 734, that the pleader, in drawing a complaint or indictment charging the offense under consideration, might have said that the accused did wilfully collide, etc., or that he did with negligence collide, etc., or he might, as in the instant case, put both ways of committing the offense in the same count, in which event a conviction might be had upon proof of either. Appellant made on attack on the information in this case in so far as it charged that his act was wilful, and for this reason, if for no other, the motion to quash was properly overruled.
The evidence seems sufficient to support either averment of the information. According to the state witnesses, appellant was driving an automobile down a narrow street in the city of Houston in violation of law at the rate of forty-five or fifty miles an hour, and struck a child with such force as to crack his skull and make necessary the insertion of a silver plate therein. An officer who went to the scene immediately after the occurrence said the tracks of the automobile showed that it had skidded about fifty feet, evidently after the brakes were applied; that it went across a ditch on the side of the street, and finally struck a tree with
No error appearing, .the judgment will be affirmed.
Affirmed.