Pehl v. State

223 S.W.2d 238, 153 Tex. Crim. 553, 1949 Tex. Crim. App. LEXIS 1268

• Court: Court of Criminal Appeals of Texas
• Decided: June 22, 1949
• Docket: No. 24398
• Status: Published

Opinions

BEAUCHAMP, Judge.

Appellant was given a commitment of three months in the county jail upon his conviction on a complaint charging negligent homicide of the first degree.

His trial was to the court without a jury. We find no bills of exception in the record and a motion for new trial has only one complaint, that the judgment is contrary to the law and the evidence.

The evidence in the case presents no serious conflict as between the state and the defense. The deceased and his three companions were driving towards the city of Houston in the early morning. The engine of their car stopped and deceased got out to blow in the tank, as he had done previously the same morning, to relieve the trouble which he thought to exist. The appellant, driving a large truck, was going in the same direction. Both were on the right hand side of the road. He ran into the car while three of the boys were seated in it and the deceased was standing either behind or by the side of the parked car. It is undisputed that the impact was terrific. The deceased was knocked to one side and the automobile was pushed more than a hundred yards' down the road. It was the state’s allegation and evidence that appellant was negligent in several respects, all of which resulted in his failure to avoid the accident and in the death of the boy. Others in the car were injured and carried by ambulance to a hospital. The court heard the evidence, found appellant guilty and assessed the punishment.

Appellant’s brief in the case contains an exhaustive treatise on four complaints, the first of which is that the information is fatally defective in that it charges only a legal conclusion. The authorities cited do not sustain his contention.

His second complaint is that Article 1231 of the Penal Code does not charge an offense, that it is a mere abstraction and not capable of practical application. Summarizing, the brief says:

“It is Appellant’s contention that Article 1231, P. C. creating the offense of negligent homicide of the first degree is void for want of due process of law, under the Fourteenth Amendment, to the Constitution of the United States, for the reason that said statute fails to prescribe with reasonable certainty the elements of said offense. 12 C. J. 1203.”

Article 1231 of the Penal Code has furnished the basis for many prosecutions. So far as we are able to ascertain, this is the first time the exact attack has been made on it. However, its constitutionality has been impliedly passed upon many times. We do not deem it necessary to enter into a discussion of the authorities cited in appellant’s brief. We have given careful attention to them and are not in accord with the contention made.

Any discussion of the third and fourth complaints may be eliminated because of our view as to the validity of the first complaint.

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