Eaves v. State

Court of Criminal Appeals of Texas

Eaves v. State

353 S.W.2d 231, 171 Tex. Crim. 670

CourtCourt of Criminal Appeals of Texas

DecidedDecember 6, 1961

Docket33638

StatusPublished

Cited by15 cases

This text of 353 S.W.2d 231 (Eaves v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Eaves v. State, 353 S.W.2d 231, 171 Tex. Crim. 670 (Tex. 1961).

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MORRISON, Judge.

Our prior opinions are withdrawn.

[671]*671The offense is operating a motor vehicle at an unlawful rate of speed; the punishment assessed in County Court at Law No. 4 of Harris County was a fine of $25.00.

By proper motion to quash, the information was attacked because it failed to allege that said vehicle was operated at said location at a speed which was greater than was reasonable and prudent under the conditions then existing, or words of similar import.

The question of the constitutionality of Subsection 1 of Section 8, Article 827a, V.A.P.C., a part of the 1951 speed law, is now squarely before this court for determination. The writer has heretofore not found it necessary to pass upon the question, as will be seen from the original opinion and that on appellant’s second motion for rehearing in Rowland v. State, 166 Tex. Cr. Rep. 118, 311 S.W. 2d 831. The case at bar requires a decision. While there is much to be said for the soundness of the dissenting opinion of my former colleague Judge Davidson in Rowland, the writer is faced with the fact that the legislatures of 30 states have adopted similar statutes, plus the fact that the Supreme Courts of 16 states have upheld the constitutionality of similar statutes where it has been challenged. An analysis of the opinions of the Supreme Courts of West Virginia and Georgia indicates that only they may hold to the contrary.

The aim of every appellate judge should be to achieve uniformity in interpretation of similar laws. It is with this in mind that I align myself with the great weight of authority and hold the statute constitutional. It therefore follows that this case must be reversed because the information failed to allege that the motor vehicle was driven at a speed which was greater than was then reasonable and prudent under the conditions presently existing, having regard to the actual and potential hazards, and in excess of 30 miles per hour in a business (or residence) district, to-wit, at a speed of 40 miles per hour, the maximum lawful speed in said district and at said location for said vehicle then and there being 30 miles per hour.

An analysis of the opinion of this Court in Alston v. State, 154 Tex. Cr. Rep. 148, 226 S.W. 2d 443, makes such a holding imperative once the 1951 act is accepted. See also 61 C.J.S., sec. 641, p. 747, and sec. 647, p. 751, and cases there cited.

[672]*672The judgment is reversed and the prosecution is ordered dismissed.

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MORRISON, Judge.

Our prior opinions are withdrawn.

[671]*671The offense is operating a motor vehicle at an unlawful rate of speed; the punishment assessed in County Court at Law No. 4 of Harris County was a fine of $25.00.

By proper motion to quash, the information was attacked because it failed to allege that said vehicle was operated at said location at a speed which was greater than was reasonable and prudent under the conditions then existing, or words of similar import.

The question of the constitutionality of Subsection 1 of Section 8, Article 827a, V.A.P.C., a part of the 1951 speed law, is now squarely before this court for determination. The writer has heretofore not found it necessary to pass upon the question, as will be seen from the original opinion and that on appellant’s second motion for rehearing in Rowland v. State, 166 Tex. Cr. Rep. 118, 311 S.W. 2d 831. The case at bar requires a decision. While there is much to be said for the soundness of the dissenting opinion of my former colleague Judge Davidson in Rowland, the writer is faced with the fact that the legislatures of 30 states have adopted similar statutes, plus the fact that the Supreme Courts of 16 states have upheld the constitutionality of similar statutes where it has been challenged. An analysis of the opinions of the Supreme Courts of West Virginia and Georgia indicates that only they may hold to the contrary.

The aim of every appellate judge should be to achieve uniformity in interpretation of similar laws. It is with this in mind that I align myself with the great weight of authority and hold the statute constitutional. It therefore follows that this case must be reversed because the information failed to allege that the motor vehicle was driven at a speed which was greater than was then reasonable and prudent under the conditions presently existing, having regard to the actual and potential hazards, and in excess of 30 miles per hour in a business (or residence) district, to-wit, at a speed of 40 miles per hour, the maximum lawful speed in said district and at said location for said vehicle then and there being 30 miles per hour.

An analysis of the opinion of this Court in Alston v. State, 154 Tex. Cr. Rep. 148, 226 S.W. 2d 443, makes such a holding imperative once the 1951 act is accepted. See also 61 C.J.S., sec. 641, p. 747, and sec. 647, p. 751, and cases there cited.

[672]*672The judgment is reversed and the prosecution is ordered dismissed.

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353 S.W.2d 231, 171 Tex. Crim. 670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eaves-v-state-texcrimapp-1961.

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