Mayberry v. State

239 S.W.2d 111, 156 Tex. Crim. 101, 1951 Tex. Crim. App. LEXIS 1493

• Court: Court of Criminal Appeals of Texas
• Decided: March 7, 1951
• Docket: 25212
• Status: Published

Opinions

BEAUCHAMP, Judge.

Appellant was convicted of negligent homicide of the second degree and given a penalty of two years in the county jail.

The appeal is based on three propositions of law, all based on the same evidence and each contending that the court committed error in failing to give his requested charges on what he contends was his affirmative defense.

The record is properly prepared and the propositions of law asserted are in accordance with the holdings of this court. We think, however, that the evidence does not raise a defense requiring the requested charges.

The automobile collision which is the basis of the prosecution occurred six miles from Floresville on the highway towards San Antonio. It is a two lane highway with a center stripe. Appellant was driving a Kaiser automobile going in the direction of San Antonio. The proof shows that he overtook another car in the same direction and turned to his left to pass around it and headed into another car going in the opposite direction. As a result of the collision two people were killed.

Testifying in his own behalf appellant said he lived in the town of Poth; that he was driving at about 50 miles an hour when the collision' occurred; that he was going towards San Antonio on his way to Kerrville. He testified: “I did find that the brakes would not hold at all before I left Poth. I stopped at Schneider’s and put in brake fluid. The brakes were strong before that. * * * I did try my brakes on the way to San Antonio. I stopped at a filling station over here to wipe my windshield, and they held good.” It is not shown whether this was before or after the accident, presumably it was before. He never testified at any time that his brakes did not hold at the time of the accident. On the contrary he said: “I do not remember whether or not I put on my brakes. I did swerve the car, and it was not too long after that we had the wreck.” On cross-examination he again stated: “I did put brake fluid in in Poth. No, I do not know whether I applied my brakes. I do recall coming over the hill. At the time I went over the hill, the cars in front of me were about % mile away. When I approached their rear, I was as close to them as from me to you. (Indicating) I got excited, I don’t know if I scraped the car. I have been driving five years.”

There is nothing in the foregoing testimony, or any other statement made by appellant, to show the reason for the collision only that he got excited. Whether this was before he swerved to the left or afterwards is not shown. It would hardly be the basis for an affirmative defense in either event. It would be natural that he became excited after he discovered his perilous position and this would be when he found himself confronted with an approaching automobile. He details nothing done on the part of the driver of the car in front of him, going in the same direction, which caused him to become excited or which would in any way contribute to the collision.

It is true that one witness, Jim Evans, who was riding in the car with appellant, testified that appellant pushed on his brake pedal, that he pushed it all the way to the floor and had no brake. It is noted, however, that appellant makes no claim that this was the cause for his driving to the left.

Considered altogether, we find no evidence of an affirmative defense and it is our conclusion that the court properly submitted the issues as raised by the evidence.

Finding no reversible error the judgment of the trial court is affirmed.