LATTIMORE, Judge.
Conviction for murder; punishment, three years in the penitentiary.
We held good an indictment similar to the one in this case, in Norman v. State, 121 Texas Crim. Rep., 433, 52 S. W. (2d) 105.
It would seem plain that since the provisions of article 42, P. C. make him punishable for the felony actually committed, who while in the execution of some other felony does some act by mistake or., accident which if voluntarily done would be a felony, — an indictment need not charge an intentional collision or killing which alleged; as in this case, that appellant drove a car on a public street while under the influence of intoxicating liquor, and that while so doing he did by mistake and accident strike and collide with a car occupied by Mr. Perkins, thereby causing the death of Perkins. The very terms of art. 42, supra, negative the proposition that the striking of Perkins, or his death, should be alleged to be voluntary or intentional.
There were many special charges asked upon this trial and refused. Also many exceptions were taken to the court’s charge as given, some of which apparently caused changes in the charge from the original draft. As we view it, the court’s charge gave in an affirmative manner the law applicable to the defensive theories. As illustrative,, we quote from said charge as follows:
[229]*229“8. Before you can find the defendant guilty of murder as charged, you must find and believe from the evidence beyond a reasonable doubt that at the time of the collision of the cars on Grape Street the defendant Tom Jones was under the influence of intoxicating liquor, and if you have a reasonable doubt as to whether or not the said Tom Jones was under the influence of intoxicating liquor, you will acquit the defendant of murder and so say by your verdict.
“8-a. You are further instructed that should you believe from the evidence beyond a reasonable doubt that the defendant was under the influence of intoxicating liquor at the time .of the collision in question, yet you must further find and believe from the evidence beyond a reasonable doubt, before you can convict the defendant, that the defendant while in such state of intoxication, if any, drove his car into and caused it to collide with the car driven by Eli Perkins and thereby caused the death of the said Eli Perkins.
“8-b. You are instructed that even though you believe and find from the evidence that the defendant was under the influence of intoxicating liquor while operating his car at the time of the collision, he would not be guilty of murder if he was operating the same in the manner that it should be operated by one not under the influence of intoxicating liquor.
“8-c. Before you can find the defendant guilty of murder as charged you must find from the evidence beyond a reasonable doubt that the fact that Tom Jones was under the influence of intoxicating liquor at the time of the collision, if he was under the influence of intoxicating liquor, was the cause of the collision or contributed to the collision,- and if you have a reasonable doubt in your mind as to whether or not his being under the influence of intoxicating liquor, if he was under such influence, caused the accident or contributed to the same, you will acquit him of murder and so say by your verdict.
“8-d. If you believe from the evidence that the car being driven by the deceased Eli Perkins was caused by the said Eli Perkins to run into or collide with the automobile being driven by the defendant Tom Jones, you will find the defendant not guilty, or if you have a reasonable doubt as to whether or not the car being driven by the said Eli Perkins was so caused to run into, or collide with the car being driven by the defendant, Tom Jones, you will find the defendant not guilty of murder.”
In our view the above sufficiently presented the propositions that the jury must find beyond a reasonable doubt that the acts of appellant, while engaged in committing a felony, caused the [230]*230death of deceased, and that said death did not. result from the acts of deceased.
The unfortunate collision, according to two eye-witnesses, took place at a point on a well lighted street in the city of Abilene, Texas, said street being forty feet wide at the point of collision. These two witnesses were in a car driving north, and were about three or four feet from the east side of the street. They affirmed that deceased was on the west side of said street going south in a car. One of said witnesses testified that deceased was about as near to the west side of the street as these witnesses were to the east side. North of where the collision occurred was a culvert and at same the street narrowed to about twenty-seven feet in width. Mr. Nixon, one of said witnesses, testified that his car was about forty feet south of said culvert when the collision took place. Appellant was coming up behind the car occupied by these witnesses, and was going north at what was testified to by another witness to be sixty miles an hour. Fowler, the other occupant of the Nixon car, testified for the defense. He said the wreck occurred about forty feet south of the culvert mentioned, and that the collision took place about even with the rear wheels of the car occupied by these witnesses. Fowler got out and went over and said the Jones car, — by which we designate the car occupied by appellant, — was on the west side of the center of the street. The Perkins car, being the car occupied by deceased, was then close to the west side of the street. He further testified that he saw Perkins some hundred and twenty feet up the street before the collision, saw him plainly, saw him cross the culvert, and then pull his car back toward the west curb of the street, continuing south, and that Perkins drove some forty feet south before the collision. This witness and others testified to the width of the car as being less than six feet, fenders and all, and that from the west side of the Nixon car where it was at the time of the collision, to the center of the street there would be a space of some ten feet, and if the Perkins car was as close to the west curb as the Nixon car, there would be a space of ten feet from the east side of said car and the center of the street. The effect of the testimony of these witnesses was to show that between the Perkins car and the Nixon car, at the point of collision, there was a clear open space of at least twenty feet.
On the question of appellant being under the influence of intoxicating liquor at the time, the testimony is in a condition [231]*231of conflict, but seems ample to. support the finding that appellant was then under the influence of such liquor.
There aré more than sixty bills of exception in the record, all of which have been examined, but most of which we deem not to present any error. Bill of exceptions 44, however, brings -forward a complaint of the argument of the district attorney in closing the case for the State. We quote from what is shown in said bill as the argument made:
“I too could tell you something, because I know Tom Jones. Less than two years ago I gave him a chance when he sat there and plead for mercy for driving a car while intoxicated. I let him off reasonably, and gave him a chance.”
Exception to this argument was reserved. The court told the jury not to consider same. We consider the harmful character of such argument so manifest as that same could not be -cured by an instruction to the jury not to .consider it. .
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LATTIMORE, Judge.
Conviction for murder; punishment, three years in the penitentiary.
We held good an indictment similar to the one in this case, in Norman v. State, 121 Texas Crim. Rep., 433, 52 S. W. (2d) 105.
It would seem plain that since the provisions of article 42, P. C. make him punishable for the felony actually committed, who while in the execution of some other felony does some act by mistake or., accident which if voluntarily done would be a felony, — an indictment need not charge an intentional collision or killing which alleged; as in this case, that appellant drove a car on a public street while under the influence of intoxicating liquor, and that while so doing he did by mistake and accident strike and collide with a car occupied by Mr. Perkins, thereby causing the death of Perkins. The very terms of art. 42, supra, negative the proposition that the striking of Perkins, or his death, should be alleged to be voluntary or intentional.
There were many special charges asked upon this trial and refused. Also many exceptions were taken to the court’s charge as given, some of which apparently caused changes in the charge from the original draft. As we view it, the court’s charge gave in an affirmative manner the law applicable to the defensive theories. As illustrative,, we quote from said charge as follows:
[229]*229“8. Before you can find the defendant guilty of murder as charged, you must find and believe from the evidence beyond a reasonable doubt that at the time of the collision of the cars on Grape Street the defendant Tom Jones was under the influence of intoxicating liquor, and if you have a reasonable doubt as to whether or not the said Tom Jones was under the influence of intoxicating liquor, you will acquit the defendant of murder and so say by your verdict.
“8-a. You are further instructed that should you believe from the evidence beyond a reasonable doubt that the defendant was under the influence of intoxicating liquor at the time .of the collision in question, yet you must further find and believe from the evidence beyond a reasonable doubt, before you can convict the defendant, that the defendant while in such state of intoxication, if any, drove his car into and caused it to collide with the car driven by Eli Perkins and thereby caused the death of the said Eli Perkins.
“8-b. You are instructed that even though you believe and find from the evidence that the defendant was under the influence of intoxicating liquor while operating his car at the time of the collision, he would not be guilty of murder if he was operating the same in the manner that it should be operated by one not under the influence of intoxicating liquor.
“8-c. Before you can find the defendant guilty of murder as charged you must find from the evidence beyond a reasonable doubt that the fact that Tom Jones was under the influence of intoxicating liquor at the time of the collision, if he was under the influence of intoxicating liquor, was the cause of the collision or contributed to the collision,- and if you have a reasonable doubt in your mind as to whether or not his being under the influence of intoxicating liquor, if he was under such influence, caused the accident or contributed to the same, you will acquit him of murder and so say by your verdict.
“8-d. If you believe from the evidence that the car being driven by the deceased Eli Perkins was caused by the said Eli Perkins to run into or collide with the automobile being driven by the defendant Tom Jones, you will find the defendant not guilty, or if you have a reasonable doubt as to whether or not the car being driven by the said Eli Perkins was so caused to run into, or collide with the car being driven by the defendant, Tom Jones, you will find the defendant not guilty of murder.”
In our view the above sufficiently presented the propositions that the jury must find beyond a reasonable doubt that the acts of appellant, while engaged in committing a felony, caused the [230]*230death of deceased, and that said death did not. result from the acts of deceased.
The unfortunate collision, according to two eye-witnesses, took place at a point on a well lighted street in the city of Abilene, Texas, said street being forty feet wide at the point of collision. These two witnesses were in a car driving north, and were about three or four feet from the east side of the street. They affirmed that deceased was on the west side of said street going south in a car. One of said witnesses testified that deceased was about as near to the west side of the street as these witnesses were to the east side. North of where the collision occurred was a culvert and at same the street narrowed to about twenty-seven feet in width. Mr. Nixon, one of said witnesses, testified that his car was about forty feet south of said culvert when the collision took place. Appellant was coming up behind the car occupied by these witnesses, and was going north at what was testified to by another witness to be sixty miles an hour. Fowler, the other occupant of the Nixon car, testified for the defense. He said the wreck occurred about forty feet south of the culvert mentioned, and that the collision took place about even with the rear wheels of the car occupied by these witnesses. Fowler got out and went over and said the Jones car, — by which we designate the car occupied by appellant, — was on the west side of the center of the street. The Perkins car, being the car occupied by deceased, was then close to the west side of the street. He further testified that he saw Perkins some hundred and twenty feet up the street before the collision, saw him plainly, saw him cross the culvert, and then pull his car back toward the west curb of the street, continuing south, and that Perkins drove some forty feet south before the collision. This witness and others testified to the width of the car as being less than six feet, fenders and all, and that from the west side of the Nixon car where it was at the time of the collision, to the center of the street there would be a space of some ten feet, and if the Perkins car was as close to the west curb as the Nixon car, there would be a space of ten feet from the east side of said car and the center of the street. The effect of the testimony of these witnesses was to show that between the Perkins car and the Nixon car, at the point of collision, there was a clear open space of at least twenty feet.
On the question of appellant being under the influence of intoxicating liquor at the time, the testimony is in a condition [231]*231of conflict, but seems ample to. support the finding that appellant was then under the influence of such liquor.
There aré more than sixty bills of exception in the record, all of which have been examined, but most of which we deem not to present any error. Bill of exceptions 44, however, brings -forward a complaint of the argument of the district attorney in closing the case for the State. We quote from what is shown in said bill as the argument made:
“I too could tell you something, because I know Tom Jones. Less than two years ago I gave him a chance when he sat there and plead for mercy for driving a car while intoxicated. I let him off reasonably, and gave him a chance.”
Exception to this argument was reserved. The court told the jury not to consider same. We consider the harmful character of such argument so manifest as that same could not be -cured by an instruction to the jury not to .consider it. . The district attorney thereby put before the jury not only the fact . that appellant, who was not a witness in the case, — had before the present occurrence driven another car while intoxicated, but also that he had appeared in court before the district attorney and there plead for mercy, and had been given a chance by said district attorney, who let him. off reasonably. It would be wholly impossible for any one to appraise the possible harm (Of conveying to the jury in any case that the person on trial had before the instant occurrence committed a crime of the same character. .This appellant was not given the lowest penalty for the offense charged against him. He was asserting, upon the testimony.of a number of witnesses, that he was not intoxicated, and was not driving a car while in that condition. Manifestly proof made by the district attorney in his argument of the fact that appellant had theretofore, while intoxicated, '.driven a car tin a public street, would have, much weight with the jury. We. regret that we cannot agree with the learned ■trial judge in his qualification to this bill in which he sets out certain argument made by appellant’s attorney regarding his personal knowledge of and friendship for the appellant, which .appears to the trial judge to have called for and probably justified the argument here complained of.
Bill of exceptions No. 50 sets out that appellant did not testify, and that a special prosecutor in the case in argument said to the jury as follows:
“Now, gentlemen, so far as the record shows, these are all that saw him. You do not know where he went the rest of that night. We do not know where he and Stanley Smith drove [232]*232over the town here and there wandering about; we do not know who they saw and talked to or who saw and talked to them. They would be in a position to testify as to those facts.”
This was excepted to as a reference to appellant’s failure to testify. We think this exception well taken. The argument specified two men, one of them appellant, who of necessity knew certain facts which had not been produced, and which argument called the jury’s direct attention to the fact that “They would be in position to testify to these facts.” Appellant was one of the parties referred to as “They,” and we are constrained to hold such argument violative of the statute against reference to the failure of the accused to testify. There are numerous other complaints of argument which we do not discuss because discussion thereof would lengthen this opinion, and which arguments may not be repeated in the event of another trial. It is to be regretted that occurrences of general character similar to the one before us are of such frequency upon our public roads as that the feelings, sympathies and resentment in the minds of jurors against such things and persons indulging therein can easily be aroused, and care should be taken in the trial of these and every other case to see that no abuse of such situation is indulged in argument.
Appellant raises a number of other questions in his exceptions to the court’s charge and his special charges, but we do not find error in any of them, and hence do not discuss same.
For the reasons mentioned the judgment will be reversed and the cause remanded.
Reversed and remanded.