Redding v. State

166 Tex. Crim. 517

Opinions

DAVIDSON, Judge,

dissenting.

This case arose and conviction was obtained in a county court under an information containing two counts.

The first count charged the misdemeanor offense of drunken driving.

Inasmuch as there is a difference of opinion between my brethren and me as to the offense charged in the second count, the charging part thereof is here copied:

“* * * heretofore on or about the 23rd day of April, A.D. 1957, in the aforesaid County and State, said Defendant was the driver and person in control of a motor vehicle, to-wit an automobile, upon a public highway, to-wit: Pine Street, and said motor vehicle did then and there strike and collide with a vehicle occupied by a person, to-wit: Jenkins Thomas, and did then and there damage said vehicle so collided with, and said Defendant did then and there unlawfully fail to stop and did then and there unlawfully fail to give unto the said occupant of said vehicle so collided with the registration number of said motor vehicle driven by said Defendant and the name and address of said Defendant, at the time and immediately after said striking and collision.”

Appellant was convicted under each count of the information. His punishment was assessed at thirty days in jail and a fine of $100 under the first count, and a fine of $100 under the second count.

My brethren affirm the conviction under each count. To that affirmance I do not and can not agree.

I base my dissent upon two cardinal propositions, these being: (a) that the information charged appellant with a felony in the second count and the county court, therefore, acquired jurisdiction neither of the person of the appellant nor of the offense charged therein, and (b) that there is no statute in this state which makes the acts alleged in the second count a misdemeanor, for which prosecution might be brought in a county court.

The Constitution of this state fixes the jurisdiction of courts of this state.

The first sentence in Art. 5, Sec. 8, Const., says that:

“The District Court shall have original jurisdiction in all criminal cases of the grade of felony * * *.”

A felony is an offense for which punishment in the penitentiary may be assessed. Art. 47, P.C.

One may be charged with the commission of a felony only by an indictment of the grand jury. Art. 1, Sec. 10, Const.; Kinley v. State, 29 Texas App. 532, 16 S.W. 339.

County courts have original jurisdiction of all misdemeanors where the authorized punishment exceeds a fine of $200. Art. 5, Sec. 16, Const.

A county court has no jurisdiction of felony cases. Gates v. State, 151 Texas Cr. Rep. 504, 210 S.W. 2d 413; Johnson v. State, 77 Texas Cr. Rep. 25, 177 S.W. 490; Hincy v. State, 96 Texas Cr. Rep. 284, 257 S.W. 541.

; Surely there can be no valid challenge of the correctness of the legal propositions hereinbefore stated.

. Does the second count of the information in this case charge appellant with the commission of a felony?

In 1917, the legislature of this state created what appears in our penal code as Art. 1150. It reads as follows:

“Failure to stop and render aid. — Whenever an automobile, motorcycle or other motor vehicle whatsoever, regardless of the power by which the same may be propelled, or drawn, strikes any person or collides with any vehicle containing a person, the driver of, and all persons in control of such automobile, motor vehicle or other vehicle shall stop and shall render to the person struck or to the occupants of the vehicle collided with all necessary assistance including the carrying of such person or occupants to a physician or surgeon for medical or surgical treatment, if such treatment be required, or if such carrying is requested by the person struck or any occupant of the vehicle collided with; and such driver and person having or assuming authority of such driver shall further give to the occupant of such vehicle or person struck, if requested at the time of such striking or collision or immediately thereafter, the number of such automobile, motorcycle or motor vehicle, also the name of the owner thereof and his address, the names of the passenger or passengers not exceeding five in each automobile or other vehicle, together with the address of each one thereof. Any person violating any provision of this article is punishable by imprisonment in the penitentiary not to exceed five years or in jail not exceeding one year or by fine not exceeding five thousand dollars, or by both such fine and imprisonment.”

By that statute it was made unlawful for the driver of an automobile or other motor vehicle to fail to stop after striking a person or colliding with a vehicle containing a person and fail to render to the person struck or the occupants of the vehicle collided with all necessary assistance.

' A five-year term in the penitentiary was authorized to be inflicted for a violation of that statute.

The offense denounced by that statute, then, was a felony. Poenich v. State, 12 S.W. 2d 208.

The construction which this court has placed upon that statute is that it is violated by either or both of two fact situations: (1) when the driver of the automobile fails to stop, the failure to stop constituting and being a violation of that law; (2) when, after having stopped as the statute requires, the driver of the automobile fails to render aid and assistance to the injured persons, such being the duty devolving upon him. See Bevil v. State, 139 Texas Cr. Rep. 513, 141 S.W. 2d 362; Mickle v. State, 149 Texas Cr. Rep. 53, 191 S.W. 2d 41.

The second count of the information charged the violation of both provisions of the statute, directly charging therein that appellant

“* * * was the driver and person in control of a motor vehicle, to-wit: an automobile, upon a public highway, to-wit: Pine Street, and said motor vehicle did then and there strike and collide with a vehicle occupied by a person, to-wit: Jenkins Thomas, and did then and there damage said vehicle so collided with, and said Defendant did then and there fail to stop * *

As has been pointed out, the allegation of failure to stop charged a violation of the statute.

The duty to render aid and assistance arises only after the driver of the automobile has stopped. Unless and until the driver stops in obedience to the command of the statute, the further command of the statute to render aid is not subject to be complied with. Such further command, then, is a part of and inseparable from the command to stop.

Under all the authorities of which I am aware, includingWillson’s Criminal Forms, 6th Edition, Sec. 1480, the second count of the instant information charges a felony and a violation of Art. 1150, P.C.

Notwithstanding these authorities, my brethren affirm this county court conviction under such information. If I understand the majority opinion, the holding therein is that the second count of the information charges a violation of Sec. 39 of Art. 6701d, R.C.S., which offense is a misdemeanor. My brethren arrive at that conclusion by construing said Sec. 39 as repealing all of that part of Art. 1150, P.C.,- which makes it unlawful to fail to stop after colliding with a vehicle containing a person. By that construction they find that Art. 1150, P.C., has been partially repealed. They refuse, however, to determine if the whole of Art. 1150, P.C., was repealed by that partial repeal.

I can not agree that Art. 1150, P.C., was repealed by any section or provision of Art. 6701d, R.C.S.

The offense created by Art. 1150, P.C., is entirely different from the offense created by said Sections 38, 39, and 40 of Art. 6701d, R.C.S. The subject matter in each statute is separate and distinct, one from the other.

The correctness of my position is demonstrated when Secs. 38, 39, and 40 of Art. 6701d, R.C.S., are construed in connection with Art. 1150, P.C. (such sections to be hereinafter referred to without repeating the article of which they are a part). Those statutes read as follows:

“Sec. 38. [Accidents involving death or personal injuries] (a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 40. Every such stop shall be made without obstructing traffic more than is necessary.

“(b) Any person failing to stop or to comply with said requirements under such circumstances shall upon conviction be punished by imprisonment in the penitentiary not to exceed five (5) years or in jail not exceeding one (1) year or by fine not exceeding Five Thousand ($5,000.00) Dollars, or by both such fine and imprisonment.

“Sec. 39 [Accident involving damage to vehicle] The driver of any vehicle involved in an accident resulting only in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 40. Every such stop shall be made without obstructing traffic more than is necessary. Any person failing to stop or to comply with said requirements under such circumstances shall-be guilty of a misdemeanor.”

“Sec. 40. [Duty to give information and render aid] The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address, and the registration number of the vehicle he is driving and shall upon request and if available exhibit his operator’s, commercial operator’s, or chauffeur’s license to the person struck or the driver or occupant of or person attending any vehicle collided with and shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.”

Sec. 38 covers only the failure of the driver of a vehicle which is involved in an accident where some person is injured or killed to stop and, after having stopped, to render aid and assistance as required under Sec. 40.

The offense there created is a felony and carries the same punishment as that affixed to a violation of Art. 1150, P.C.

For one to violate that statute, then, he must be the driver of a vehicle — any vehicle — and as the result of an accident in which that vehicle is involved some person must be injured or killed.

Art 1150, P.C., covers no such fact situations but, rather, entirely prohibits other and separate acts. For instance, Art. 1150, P.C., is violated only by the driver of a “motor vehicle,” while Sec. 38 covers any vehicle as defined in the act of which the section is a part — concerning which I will have more to say later. Further, Art. 1150, P.C., is violated by the mere striking of a person. Injury to or the death of the person struck is not an element of the offense there created and neither condition is therefore necessary to be alleged or proved in order to convict under that provision of Art. 1150, P.C.

I am convinced that Sec. 38 and Art. 1150, P.C., are separate and distinct and denounce distinct and separate offenses.

It is interesting to note that the information in this case did not allege facts showing a violation of Sec. 38. It did allege a violation of Art. 1150, P.C.

Now what is the offense created by Sec. 39? It is this section which my brethren hold constitutes a partial repeal of Art. 1150, P.C. Sec. 39 makes it unlawful and a misdemeanor for the driver of any vehicle involved in an accident resulting in damages only to another vehicle attended or driven by some person to fail to stop and render aid as required by Sec. 40. Art. 1150, P.C., makes the failure to stop complete with the mere striking of the other vehicle without reference to whether the vehicle was damaged and without reference to whether an accident was involved and the striking of the other vehicle occurred as a result of an accident.

In addition to the above noted differences between the offenses created by Art. 1150, P.C., and Secs. 38 and 39, there is another paramount difference which precludes any construction that the statutes cover the same offense or make unlawful the same acts: I have reference to the use of the words “automobile, motorcycle or other motor vehicle” in Art. 1150 P.C. That article is violated only by the driver of an “automobile” or some “motor vehicle.” All other vehicles are expressly precluded. Secs. 38 and 39 have reference to any “vehicle” and such sections are violated only by the driver of any “vehicle.”

It is and would be very easy to say that the word “vehicle,” in its usual acceptation and meaning, includes within its terms “motor vehicles.” That is what my brethren hold when they say that Art. 1150, P.C., has been partially repealed by Sec. 39. But the legislature of this state has said exactly to the contrary. The legislature having given a special definition to the term “vehicle,” as used in Secs. 38 and 39, that term does not and can not include a “motor vehicle.” In the same act, Art. 6701d, R.C.S., of which Secs. 38 and 39 are a part, the legislature defined a vehicle, as used in the act and therefore as used in those sections, as follows:

“Art. 6701d. Uniform Act Regulating Traffic on Highways.

“Article 1 — Words and Phrases Defined

“Definitions of words and phrases

“Section 1. The following words and phrases when used in this Act shall, for the purpose of this Act, have the meanings respectively ascribed to them in this Article.

“Subdivision 1 — Vehicles and Equipment Defined

“Vehicles

“Sec. 2. (a) Vehicle. Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks.”

Such definition, standing alone, may have included motor vehicles within its terms, but the legislature not only did not intend that motor vehicles be included within that definition but it expressly said that it did not include that term, for in the same section and immediately following the definition of “vehicle” the legislature defined a “motor vehicle,” as used in the act, as follows:

“See. 2 (b) Motor Vehicle. Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.”

In plain, intelligible, and understandable language the legislature has said that, in so far as Art. 6701d, R.C.S., and the several sections contained therein are concerned, a “vehicle” and a “motor vehicle” are separate and distinct one from the other. Under no circumstances or by no hypothesis of reasoning could it be said that a “motor vehicle” and a “vehicle” are one and the same.

The legislature did not stop merely with taking “motor vehicle” out of the general definition of “vehicles,” but, to make absolutely and doubly sure that the terms “vehicle” and “motor vehicle” were to be restricted to the meaning as expressed in the definition thereof, the legislature defined in the same Sec. (2) of the act, the terms “Motorcycle,” “School Bus,” “Truck Tractor,” “Farm Tractor,” “Road Tractor,” “Truck,” and “Bus.’ In the definition of each of those terms “motor vehicle” is a part thereof — all of which demonstrates not only the intent but the express will of the legislature that a “motor vehicle” was not included within the definition of “vehicle.”

Moreover, this will of the legislature is further demonstrated by the definitions which it gave to the terms “Authorized Emergency Vehicle,” “Trailer,” “Semi-Trailer,” “Pole Trailer,” and “House Trailer,” as used in the act. In none of those terms does “motor vehicle” appear.

The definition of those terms again demonstrates that a “motor vehicle” is not within the definition of “vehicle,” as used in the act, for nowhere in those definitions is a “vehicle” defined as a “self-propelled” vehicle, which is the distinguishing element of the definition of “motor vehicle.” If a “motor vehicle” is a “vehicle,” then a “trailer,” being a vehicle, is a “motor vehicle.”

Notwithstanding the language of the statute and the express definitions contained therein, my brethren here hold that a “motor vehicle” and a “vehicle,” as used in the statute, mean the same thing and come within the same definition. Talk about judicial legislation and usurpation of legislative power by the courts: Here such are demonstrated in their rankest form, for my brethren not only refuse to accept the statute as written by the legislature but they rewrite into the statute that which is not a part thereof but is expressly contrary thereto. When my brethren hold that the term “motor vehicle” is included within the term “vehicle,” as used in Sec. 39, they rewrite those definitions and redefine the terms “motor vehicle” and “vehicle” so as to comport with their own idea of what those terms should be rather than what the legislature of this state said they were.

It is neither the business of the courts nor the prerogative of the juderes of the courts to enter the field of legislation, to usurp legislative power, and to enact a law or laws according to their conception of what the law should or should not be.

It is the business of the courts to construe and enforce the law as the legislature has written it and not to write a law or, by the exercise of judicial power, to create a law.

When my brethren say that Sec. 39 prohibits the same unlawful act as does Art. 1150, P.C., and thereby effects a repeal of that article to that extent, they are writing into that section and making unlawful an act which the legislature did not write therein but expressly refused to so write.

I pass, now, to a discussion of the question of partial repeal of Art. 1150, P.C., by Sec. 39, as held by my brethren:

In the passage of Art. 6701d, R.C.S., of which Sec. 39 is a part, the legislature at no time authorized or made provision for partial repeal of existing statutes. To the contrary, the legislature expressly provided in Sec. 156 of Art. 6701d that:

“All laws or parts of laws inconsistent or conflicting with the provisions of this Act are hereby repealed * * *.”

To be absolutely sure that all conflicting or inconsistent laws were repealed, the legislature expressly exempted certain statutes. Art. 1150, P.C., was not one of them.

When my brethren hold that Sec. 39 is inconsistent and conflicts with Art. 1150, P.C., they thereby hold that Art. 1150, P.C., has been repealed in its entirety. No other conclusion is authorized if the express words of the legislature are to be recognized or given effect.

There is another and very potent reason why Art. 1150, P.C. has been repealed in its entirety by the holding of my brethren: I call attention to the fact that in affirming this conviction under this information my brethren are holding that there is no law which makes it a felony for the driver of an automobile to fail to stop after striking and colliding with another vehicle occupied by some person.

Such was the offense created by Art. 1150, P.C., and the offense charged in the information in this case.

If the county court had jurisdiction under the information in this case to render the judgment that it did — and my brethren hold that it did — then Art. 1150, P.C., no longer exists as a valid law in this state and has been repealed since 1947.

It is regrettable, to my mind, that Art. 1150, P.C., is stricken down and nullified by judicial decree. I can not refrain from calling attention to the injustice that was done to all those persons convicted of violating a repealed statute after the effective date of Art. 6701d, R.C.S., and Secs. 38, 39, and 40 thereof, as was done in Griffin v. State, 158 Texas Cr. Rep. 13, 252 S.W. 2d 706, and Salter v. State, 159 Texas Cr. Rep. 482, 264 S.W. 2d 719, wherein a conviction carrying a penalty of two years in the penitentiary was affirmed in each case, as doubtless other convictions which did not reach this court have resulted since 1947.

If my brethren are right, here, that a prosecution by information charging a violation of Art. 1150, P.C., for failing to stop after a collision can be successfully conducted to final conviction in a county court, then all those persons who have been convicted and sentenced to the penitentiary for violating Art. 1150, P.C., subsequent to 1947, were convicted without authority of law.

That the information in this case was and is fatally defective because it charged the commission of a felony is directly supported by the case of Johnson v. State, 77 Texas Cr. Rep. 25, 177 S.W. 490, 2d case. In that case the indictment charged a felony and a misdemeanor in the same count. The district court transferred the indictment to the county court where the conviction was had. The county court conviction was reversed by this court, with direction to the county court to transfer the case back to the district court, which alone had jurisdiction of the felony charged in the indictment.

Here, the same rule applies and, in addition, it will be noted that the prosecution, here, is under an information. There is no indictment in this case. The prosecution arose in the county court.

Because the county court was without jurisdiction to render the judgment that it did render in this case, this prosecution should be ordered dismissed.

I respectfully dissent.