Ebbs v. State

279 S.W. 829, 103 Tex. Crim. 49, 1925 Tex. Crim. App. LEXIS 1242

• Court: Court of Criminal Appeals of Texas
• Decided: December 16, 1925
• Docket: No. 9131.
• Status: Published

Opinions

BERRY, Judge.

Appellant was convicted in the County Court of Rockwall County for the offense of unlawfully and with gross negligence driving a motor vehicle upon a highway of the state, colliding with and causing injury to W. L. Goodman, and his punishment assessed at a fine of $100.00.

The facts show that appellant while attempting to pass the alleged injured party on a public highway in Rockwall County permitted the car in which he was riding to collide with the truck in which the alleged injured party was riding, overturning the truck, and seriously injuring the alleged injured party.

By bill of exception number one appellant complains at the court’s action in refusing to quash the complaint and information. The complaint and information is in substantially the language of the'Statute and the motion to quash was properly overruled. The record discloses that Miss Nealy Covey and Mrs. S. W. Covey were riding in the car with Goodman, the alleged injured party and that they also received injuries in the collision.

By bill of exception number two appellant complains of the court’s action in permitting the state to prove that these parties were also injured. This testimony was clearly a part of the res gestae and as such was admissible. Crews v. State, 31 S. W. 373; Lee v. State, 162 S. W. 843. The same question is raised in a little different form by bill of exception number three and our observations in regard to bill number two disposes of same against the appellant’s contention.

Bill of exception number four complains of the court’s action in permitting a witness to testify that about a week after the collision he had a conversation with the sheriff in which the sheriff told him over the telephone that he thought the man that hit Goodman was there. This witness was an eye-witness to the collision and it seems that there had been some difficulty in identifying the appellant as the man who caused the collision. This bill shows nothing more than what we have indicated above. It fails to show that the appellant was the party whom, the sheriff told witness he thought had caused the collision and we see no possible harm to the appellant in its admission. The same question is presented in practically the same form in bill number five and the views we have expressed with reference to bill number four dispose of bill number five contrary to appellant’s contention.

We think the testimony is amply sufficient to support the verdict in the event the jury should adopt the state’s theory of the case, and we therefore hold that the court did not err in refusing to peremptorily instruct the jury to acquit the defendant.

We have carefully considered the special charges offered .by appellant and so far as they are in conformity with the law it is our opinion that they are fully covered by the court in his main charge to the jury.

Finding no error in the record it is our opinion that the judgment should be in all things affirmed.

Affirmed.

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.