Butterfield v. State

317 S.W.2d 943, 167 Tex. Crim. 64, 1958 Tex. Crim. App. LEXIS 3502

Opinions

WOODLEY, Judge.

The offense is driving an automobile upon a public highway while intoxicated; the punishment, thirty days in jail and a fine of $50.

It is conceded by appellant, in his brief, that the evidence is sufficient to sustain the conviction. It will not be discussed further than to say that, in addition to opinion evidence of the arresting officer and other witnesses for the State, an analysis of a sample of blood taken from appellant showed that it contained “8.5 milligrams of alcohol per c.c. of blood.”

The sole claim of error is predicated upon the trial court’s failure to submit as a defense that appellant drove his automobile upon a public highway because of necessity; that is, if the jury should find that he drove his automobile upon a public highway while intoxicated, but further found that he did so only for the purpose of seeking medical treatment for a serious head injury which he had sustained in his apartment, they should acquit.

We are aware of no such defense and decline to hold that an intoxicated driver of an automobile upon a public highway commits no offense if it be shown that a necessity existed or that it appeared to him to be necessary that he make the journey.

The judgment is affirmed.