KRUEGER, Judge.
The offense is driving an automobile on the streets of the City of San Angelo while drunk. The punishment assessed is confinement in the State penitentiary for a term of one year and one day.
The State’s testimony, briefly stated, shows that on the night of February 6, 1940, while appellant was driving her automobile upon and along the streets of the City of San Angelo, she ran into another car. As a result of the collision, her automobile, as well as the other car, was rather badly damaged, and she was bruised about her head and body. She was immediately taken to a hospital in an ambulance for treatment. The
doctors who administered to her testified that they smelled the odor of liquor on her breath. From their conversations with her and the odor of liquor upon her breath, they concluded that she was drunk. A city policeman who went to the hospital and assisted in carrying her from the emergency room to the X-ray room, testified that from the manner of her speech, talk and having smelled the odor of beer upon her breath, it was his opinion that she was drunk.
Appellant took the witness-stand and denied that she was drunk. She said that she drank only two bottles of beer that evening.
George Phillips testified that he was at appellant’s home about 9:00 or 9:30 o’clock on the night in question with a view of selling her some rock-wool insulation for her home; that she did not show any sign of being intoxicated; that he had seen many drunk people; that he talked to them and observed them, but during his visit to the appellant’s home, he noticed nothing which indicated that she was intoxicated.
Bill of Exception No. 1 complains of the following testimony elicited by the State from Mr. Green, a city policeman, to-wit:
“I was close enough to her to smell her breath, I could smell beer on her breath. I observed her talk and manner of speech and she talked like any drunk person to me.”
Appellant objected to the testimony quoted because it was but the- expression of an opinion and conclusion without stating any facts as a basis for the conclusion and therefore prejudicial. It occurs to us that there is no merit in her contention. In this connection, we quote from the syllabus in the case of Inness v. State, 106 Tex. Cr. R. 524, as follows:
“ ‘A non-expert witness may testify that the accused or some other person was intoxicated on a given date.’ Drunkenness is of such common occurrence that its recognition requires no scientific knowledge, and it is a well settled general rule that a witness, not an expert, may give his opinion as to whether or not a person is intoxicated, when he has had the opportunity to observe the facts upon which he bases his opinion, and such testimony is not circumstantial, but is direct.”
See collation of authorities in opinion on motion for rehearing. See also Riddle v. State, 107 Texas Cr. R. 571, and cases cited.
By Bill of Exception No. 2 appellant complains of the following testimony elicited by the State from Dr. Stanley:
“I could smell alcohol on her breath; it smelled as if she had been drinking some liquor but I couldn’t tell you the type.”
It is our opinion that this testimony was admissible. The doctor, no doubt, was familiar with the odor of alcohol and recognized it when he smelled it. Although he was unable to determine or remember its kind or type, the character of the intoxicating liquor which she had imbibed was of little, if any, moment. The main and principal question before the court and jury was whether or not the appellant was drunk.
Bill of Exception No. 8 reflects the following occurrence: After Gordon Kenley, an insurance adjuster, had testified on direct examination as to appellant’s general bad reputation, he testified on cross-examination by appellant, as follows:
“I have talked to several insurance adjusters here about her reputation. I have talked to Mr. Horton, to Mr. Pate, and with Mr. Foster. We talked about the claims. * * * I have paid some claims on her. * * * I was not mad about it. I am not mad at her. * * * Because we have had to pay some claims is not the reason I dislike her.”
On re-direct examination by the State the witness testified:
“We paid one liability claim at Odessa and we paid on another on Oakes Street here in San Angelo three or four years ago. Those are the only two we have paid off.”
Appellant objected to the testimony elicited from the witness on re-direct examination by the State on the ground that it was prejudicial and solved no issue in the case. Whether it was prejudicial or not need not be discussed here. Appellant first brought out the fact that the witness, on behalf of the Insurance Company, had paid some claims on her; consequently she will not be heard to complain of similar testimony developed by the State. She first invaded that field, and explored it, found what she deemed pertinent, and then when the State merely showed the exact number of claims against her, that were paid, she complains. We are constrained to overrule her contention.
By Bill of Exception No. 4 appellant complains of the following remarks made by the District Attorney during his closing argument to the jury:
“Counsel for defendant has gone out of the record to tell you
that if you give this defendant a fine and jail sentence; the Court would be required in that event to suspend her right to drive an automobile for a period of six months; and since he has gone out of the record to tell you that, I will tell you that if you should suspend the sentence, if she is found guilty, under the law she would not lose her right to drive.”
Appellant’s objection to the argument was based on the ground that it was inflammatory and prejudicial and that it was an unsworn statement outside of the record and not a proper comment on the evidence in the case. It is obvious from the argument complained of that defendant’s counsel had invited the argument of which he complains.
In the case of Campbell v. State, 62 Texas Cr. R. 561, this court said:
“When defendant’s counsel discussed matters outside of the record, they can not be heard to complain when the court permits opposing counsel to reply. All of this was improper in the absence of any testimony before the jury as to Mrs. Campbell’s condition, but the defendant having first referred to these extrinsic matters, he ought not now be permitted to complain when the objectionable remarks were in direct response to his criticisms.”
See Fluewellian v. State, 59 Texas Cr. R. 334; Roberts v. State, 60 Texas Cr. R. 111; Hilcher v. State, 60 Texas Cr. R. 180; Branch’s Ann. Texas P. C., Sec. 363.
By Bill of Exception No. 5, appellant complains of the following remarks made by the District Attorney in his closing argument to the jury:
“I don’t know how you feel about these drunken driving cases, but I will say that if you don’t do something about these cases, it may be your wife and your children the next time that will be run over and knocked one-third or one-half a block down the street.”
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KRUEGER, Judge.
The offense is driving an automobile on the streets of the City of San Angelo while drunk. The punishment assessed is confinement in the State penitentiary for a term of one year and one day.
The State’s testimony, briefly stated, shows that on the night of February 6, 1940, while appellant was driving her automobile upon and along the streets of the City of San Angelo, she ran into another car. As a result of the collision, her automobile, as well as the other car, was rather badly damaged, and she was bruised about her head and body. She was immediately taken to a hospital in an ambulance for treatment. The
doctors who administered to her testified that they smelled the odor of liquor on her breath. From their conversations with her and the odor of liquor upon her breath, they concluded that she was drunk. A city policeman who went to the hospital and assisted in carrying her from the emergency room to the X-ray room, testified that from the manner of her speech, talk and having smelled the odor of beer upon her breath, it was his opinion that she was drunk.
Appellant took the witness-stand and denied that she was drunk. She said that she drank only two bottles of beer that evening.
George Phillips testified that he was at appellant’s home about 9:00 or 9:30 o’clock on the night in question with a view of selling her some rock-wool insulation for her home; that she did not show any sign of being intoxicated; that he had seen many drunk people; that he talked to them and observed them, but during his visit to the appellant’s home, he noticed nothing which indicated that she was intoxicated.
Bill of Exception No. 1 complains of the following testimony elicited by the State from Mr. Green, a city policeman, to-wit:
“I was close enough to her to smell her breath, I could smell beer on her breath. I observed her talk and manner of speech and she talked like any drunk person to me.”
Appellant objected to the testimony quoted because it was but the- expression of an opinion and conclusion without stating any facts as a basis for the conclusion and therefore prejudicial. It occurs to us that there is no merit in her contention. In this connection, we quote from the syllabus in the case of Inness v. State, 106 Tex. Cr. R. 524, as follows:
“ ‘A non-expert witness may testify that the accused or some other person was intoxicated on a given date.’ Drunkenness is of such common occurrence that its recognition requires no scientific knowledge, and it is a well settled general rule that a witness, not an expert, may give his opinion as to whether or not a person is intoxicated, when he has had the opportunity to observe the facts upon which he bases his opinion, and such testimony is not circumstantial, but is direct.”
See collation of authorities in opinion on motion for rehearing. See also Riddle v. State, 107 Texas Cr. R. 571, and cases cited.
By Bill of Exception No. 2 appellant complains of the following testimony elicited by the State from Dr. Stanley:
“I could smell alcohol on her breath; it smelled as if she had been drinking some liquor but I couldn’t tell you the type.”
It is our opinion that this testimony was admissible. The doctor, no doubt, was familiar with the odor of alcohol and recognized it when he smelled it. Although he was unable to determine or remember its kind or type, the character of the intoxicating liquor which she had imbibed was of little, if any, moment. The main and principal question before the court and jury was whether or not the appellant was drunk.
Bill of Exception No. 8 reflects the following occurrence: After Gordon Kenley, an insurance adjuster, had testified on direct examination as to appellant’s general bad reputation, he testified on cross-examination by appellant, as follows:
“I have talked to several insurance adjusters here about her reputation. I have talked to Mr. Horton, to Mr. Pate, and with Mr. Foster. We talked about the claims. * * * I have paid some claims on her. * * * I was not mad about it. I am not mad at her. * * * Because we have had to pay some claims is not the reason I dislike her.”
On re-direct examination by the State the witness testified:
“We paid one liability claim at Odessa and we paid on another on Oakes Street here in San Angelo three or four years ago. Those are the only two we have paid off.”
Appellant objected to the testimony elicited from the witness on re-direct examination by the State on the ground that it was prejudicial and solved no issue in the case. Whether it was prejudicial or not need not be discussed here. Appellant first brought out the fact that the witness, on behalf of the Insurance Company, had paid some claims on her; consequently she will not be heard to complain of similar testimony developed by the State. She first invaded that field, and explored it, found what she deemed pertinent, and then when the State merely showed the exact number of claims against her, that were paid, she complains. We are constrained to overrule her contention.
By Bill of Exception No. 4 appellant complains of the following remarks made by the District Attorney during his closing argument to the jury:
“Counsel for defendant has gone out of the record to tell you
that if you give this defendant a fine and jail sentence; the Court would be required in that event to suspend her right to drive an automobile for a period of six months; and since he has gone out of the record to tell you that, I will tell you that if you should suspend the sentence, if she is found guilty, under the law she would not lose her right to drive.”
Appellant’s objection to the argument was based on the ground that it was inflammatory and prejudicial and that it was an unsworn statement outside of the record and not a proper comment on the evidence in the case. It is obvious from the argument complained of that defendant’s counsel had invited the argument of which he complains.
In the case of Campbell v. State, 62 Texas Cr. R. 561, this court said:
“When defendant’s counsel discussed matters outside of the record, they can not be heard to complain when the court permits opposing counsel to reply. All of this was improper in the absence of any testimony before the jury as to Mrs. Campbell’s condition, but the defendant having first referred to these extrinsic matters, he ought not now be permitted to complain when the objectionable remarks were in direct response to his criticisms.”
See Fluewellian v. State, 59 Texas Cr. R. 334; Roberts v. State, 60 Texas Cr. R. 111; Hilcher v. State, 60 Texas Cr. R. 180; Branch’s Ann. Texas P. C., Sec. 363.
By Bill of Exception No. 5, appellant complains of the following remarks made by the District Attorney in his closing argument to the jury:
“I don’t know how you feel about these drunken driving cases, but I will say that if you don’t do something about these cases, it may be your wife and your children the next time that will be run over and knocked one-third or one-half a block down the street.”
Appellant objected to this argument upon the same grounds stated in Bill No. 4. It occurs to us that this argument was justified by the evidence. There was testimony that the appellant was drunk at the time in question; and it is equally true that the Legislature intended that something had to be done about “these drunken driving cases,” and therefore passed the law under which this prosecution was initiated. The object and purpose of the law is to prevent men, women and children from
being wounded and maimed by persons driving automobiles while in a state of intoxication. Consequently we are of the opinion that the argument was not entirely outside the record or an unreasonable deduction from the testimony.
By Bill of Exception No. 6 appellant complains of the following remarks by the District Attorney in his argument to the jury:
“Counsel has told you, without having any evidence in the record to support it, that the State should have had the driver of the car that was hit here to testify as to whether or not the defendant was drunk. He testified to you in his argument that the driver was in a position to know her condition. Since he has gone out of the record to tell you that, I will tell you that the driver of the car that was hit didn’t observe the condition of the defendant. He was not able to. The evidence shows this car was knocked for a distance of one-third or one-half block from where it was hit.”
Appellant again objected to the argument on the ground that it was inflammatory and prejudicial, being an unsworn statement and outside the record, and not a proper comment upon the evidence adduced upon the trial. The argument here complained of clearly shows that it was invited by defendant’s counsel. He was bitterly complaining of the fact that the State had failed to produce the witness whose car was hit by that of the appellant and to have him testify as to whether or not the defendant was drunk. There was no testimony in the record that the driver of the car which was hit, either before, at the time of, or soon after the collision, was close enough to the appellant or in a position to observe her, in order to know whether or not she was drunk. That the car into which the appellant drove her automobile was knocked a distance of approximately one-third of a block is shown by the testimony in the case. What we have said in disposing of Bill of Exception No. 4 applies here and we do not believe that it would serve any useful purpose to here reiterate what we have heretofore said.
By Bill of Exception No. 7 appellant complains of the action of the trial court in overruling his amended motion for a new trial based upon various grounds, namely, the admission of testimony, the arguments of the District Attorney, all of which have been brought forward by proper bills of exception, and on the further ground of misconduct of the jury in this: that after having retired to consider their verdict, they received other unsworn testimony from one or more of their members which
was irrelevant, immaterial, inflammatory and prejudicial to the rights of the defendant in that said jurors, in substance, made the following statements:
“That the defendant was an immoral woman and ought to be sent to the penitentiary.”
“The defendant is a mere nobody. She doesn’t amount to anything and should be sent to the penitentiary.”
“The defendant has been taking high school girls out to her house where she lives for immoral purposes.”
The court heard the testimony of the jurors relative to the allegations contained in the motion, but none of them testified that any member had stated during their deliberations that the appellant was an immoral woman or that she had taken high-school girls out to her home for immoral purposes; that the only remark made was that of two of the jurors to the effect that appellant was not “a good woman.” When asked what was meant by the statement that she was not “a good woman,” the juror answered:
“A good woman usually stays home and attends to her own business, takes care of the family and household and all that sort of thing and don’t go places she don’t have to go, and don’t drive a car while drunk, and one thing and another.”
The other jurors who were called to testify stated that they did not hear any such remarks.
After hearing the testimony, the court overruled the motion to which appellant then and there excepted and brings forward for review the rulings of the court relative thereto. We are not prepared to say that under the facts disclosed by this record the remark of the juror that the appellant was, not “a good woman” is not a proper deduction from the facts and entirely unjustified. It occurs to us that the juror’s interpretation of what is meant by “a good woman” is in accord with the general prevailing opinion of many sober-minded people that good women do not get drunk and recklessly drive automobiles upon the streets of a city while in such condition. Good women, like good men, respect and observe the law and do not wilfully and with impunity disregard it. Moreover, there was testimony that the appellant’s general reputation was bad. Whenever such testimony is adduced before the jury, they are authorized to discuss it. See Brice v. State, 61 S. W. 121.
No reversible error having been discovered from a review of
the record, the judgment of the trial court is 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.