Smith v. State

179 S.W.2d 965, 147 Tex. Crim. 278, 1943 Tex. Crim. App. LEXIS 684

Opinions

KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the State penitentiary for a period of three years and six months.

Appellant’s chief contention is that the trial court erred in overruling his motion in which he requested the court to peremptorily instruct the jury to acquit him. He bases his contention upon two grounds. First, that injuries which the deceased received were not inflicted upon a highway, but after the automobile had passed from the highway through a barbed-wire fence and into a pasture. Second, that the uncontradicted evidence shows that he had no knowledge that the deceased was on the turtle-back or the left rear fender of the automobile at the time of the unfortunate occurrence and therefore could not be guilty of murder- under Art. 802c, P. C.

In order that this opinion may clearly reflect the basis for our conclusion on the question presented, we deem it proper to briefly state the salient facts proven on the trial.

The record shows that on or about the 14th day of May, 1942, the appellant and his wife, accompanied by a brother-in- law, O. G. McCormack, and his wife, came in an automobile from Dimmitt, by way of Amarillo, to Wheeler to visit the parents of 0. G. McCormack and appellant’s wife; that before leaving Amarillo appellant purchased a quart of whisky; that on the way to Wheeler he and his brother-in-law, O. G._ McCormack, took two "or three drinks; that after they arrived at their destination they each took another drink before eating their evening meal; that after they had finished their meal the appellant, accompanied by his father-in-law and brother-in-law, went to the home of Venson Smith, a nephew of appellant; that while at Smith’s home, he and appellant took a drink or two of whisky out of the latter’s bottle. While at the home of Smith, appellant and the McCormacks invited Smith and his wife to go back with them to the McCormack home and visit with them a while, which Smith and his wife agreed to do. They left the home of Smith about dark in two automobiles, the appellant and the McCormacks riding in a car driven by appellant while Smith and his wife rode in their own car. After they had reached the main highway, appellant drove off the main traveled • part of the highway and bogged down in a sand bed. Venson Smith, who endeavored to pull them out, slipped down and also bogged down. While they were trying to dig the cars out with their hands, the deceased, Tyson Jeffus, and wife drove up in a coupe. Smith solicited Jeffus to help get the cars out of the sand bed. After they had worked awhile without any success, Smith and Jeffus, accoihpanied by their wives, drove in Jeffus’ car to a neighbor’s- house, borrowed a shovel, came back and started shoveling sand while their wives remained in Jeffus’ coupe. While the men were thus, engaged, appellant left his car, went to the coupe occupied by Mrs. Smith and Mrs. Jeffus, got into the car under the steering wheel and started to drive away. The women screamed and tried to prevent him from driving the automobile away. Mrs. Smith, who was seated on the right-hand side of the coupe, leaped from it. Their husbands,' who heard the screams and also saw the car moving, ran towards it, 'with a view of recovering it. Jeffus jumped on the turtle-back thereof and made his way to the left rear fender while the car was being driven by appellant at a high rate of speed. While Jeffus occupied the position stated, appellant drove across the highway, down the embankment, across the borrow pit and through a barbed-wire fence which stood about two or three feet east of the highway and parallel thereto, breaking posts and wires; that' some of the broken wires wrapped around the car and swung back, severing the femoral artery in Jeffus’ leg, as a result of which he bled to death in'a very few minutes. Neither appellant nor Mrs. Jeffus, who occupied the car at the time of the unfortunate occurrence, knew that the deceased was on the fender of the automobile.

Appellant takes the position that the facts of this case do not bring him within the purview of Articles 802, 802b, and 803c, P. C., which read as follows:

“Any person who drives or operates an automobile or any other motor vehicle upon any public road or highway in this State, or upon any street or alley within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, shall be guilty of a misdemeanor, and upon conviction, shall be-punished by confinement in the County Jail for not less than ten (10) days nor more than two (2) years, or by a fine of not less than Fifty Dollars ($50) nor more than Five Hundred Dollars ($500), or by both such fine and imprisonment.” (Art. 802).

“Any person who has been convicted of the misdemeanor offense of driving or operating an automobile or other motor vehicle upon any public road or highway in this State or upon any street or alley within an incorporated city, town or village, while intoxicated or under the influence of intoxicating liquor, and who shall thereafter drive or operate an automobile or other motor vehicle upon any public road or highway in this State or upon any street or alley within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, shall be guilty of a felony and upon conviction be punished by confinement in the penitentiary for any term of years not less than one (1) nor more than five (5).” (Art. 802b).

“Any person who drives or operates an automobile or any other motor vehicle upon any public road or highway in this State, or upon any street or alley or any other place within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, and while so driving and operating such automobile or other motor vehicle shall through accident or mistake do another act which if voluntarily done would be a felony, shall receive the punishment affixed to the felony actually committed.” (Art. 802c).

Appellant claims that since the fence was two or three feet removed from the east boundary line of the highway and the body of the deceased was found in a pasture thirty or forty feet east of the highway, the offense charged was not committed upon a highway and, since under the statute the act must have been committed on a highway,' street or alley of a city, town or village, he was entitled to the requested instruction. We do not believe his position is well founded. It must be borne in mind that he set the automobile in motion while on the highway and remained on the highway until after he ran through the fence into the pasture; that the broken wires swung back and inflicted the injuries which resulted in the death of Jeff us; that he was still on the highway when he encountered the fence. Had he not struck the fence and broken the wires, the particular injury would not have resulted to the deceased. Therefore, the question arises: Was the injury inflicted while the- automobile was still on the highway or after it had passed through the fence and into the pasture? It is common knowledge that wire is more or less elastic and when stretched to the breaking point swings back beyond the point of its original position. This being true, it occurs to us that whether or not appellant was on or off the highway was an issue of fact which the jury was authorized to determine from all the facts and circumstances before them. Consequently, appellant was not entitled to the instruction requested upon the point just considered.

Having disposed of his first contention, we will now discuss his next question. The driving of an automobile upon a public highway by a person while intoxicated is a misdemeanor,under Art. 802, P.C., but becomes a felony under Art. 802b, P.C., when such person has theretofore been convicted of such offense. Consequently, in the absence of being charged with having theretofore been convicted of driving an automobile upon a public highway while intoxicated, he . would not be guilty of a felony. Therefore, to bring the act of the appellant in the present case within the purview of Art. 802, P. C., his act of intentionally driving an automobile, while intoxicated, through a barbed-wire fence must constitute a felony .under the law. If it does not, he cannot be convicted of murder under the disputed facts of this case. Therefore, unless he knew that the deceased was on the fender of the car and did, with a reckless disregard of the lives of others, drive the car through the fence, knowing that death would be the natural and. probable consequences of his act, he would not be guilty of murder. Suppose appellant had been sober and had deliberately driven the car through a barbed-wire fence without any knowledge on his part that the deceased was on the rear fender of the car and without any intent to injure or kill and without any apparent danger of doing so, would he be guilty of murder? We think not. While it is true that every person is responsible for the natural and probable consequences of his act, yet, unless the result of his act is the natural and probable consequences thereof, he would not be guilty of an offense. Therefore, unless appellant knew that the deceased was on the rear fender of the car or had any reason to believe that he or some other person was in it, there could not have been an apparent danger of killing anyone.

In the case of Latta v. State, 64 S. W. (2d) 968, the appellant was charged with the murder of his wife. The facts developed upon the trial of that case showed that the deceased was in a vacant room of which the door was closed. The accused, who was in the hallway with a grapefruit in one hand and a pistol in the other, claimed that the pistol was accidently discharged, the bullet passing through the door and killing his wife instantly. We held in that case that the accused was entitled to an affirmative instruction on the lack of knowledge oh his part that the deceased was in the vacant room. The effect of such a charge would be that if the accused had no knowledge that a person was in the room and would likely be struck by the bullet so fired, he would not be guilty of murder.

In the case of Cockrell v. State, 117 S. W. (2d) 1105, the facts disclosed that a man, his wife and several children were walking along the side of a public highway, going in the direction from which the appellant was coming in an automibile; that appellant, while intoxicated, drove the car against and over the children, killing two of them. In that case we said that the act of the accused in driving his automobile showed such a reckless disregard of the lives of others as to warrant a conviction of murder with malice. In that case the accused saw the people on the side of the road, or, by the exercise of his normal faculties, could have seen them. He may not have intended to kill anyone, yet, his act was such that it showed a reckless disregard for human life. Had the appellant in the present case known that the deceased was on 'the rear fender of the car and with full knowledge thereof he had deliberately driven through the barbed-wire fence, an entirely different question would be presented. Had appellant, while under the influence of intoxicating liquor, driven the car upon said highway and, by accident or mistake, struck the deceased, whether he saw him or not but where he should have expected people to be, he would no doubt be guilty under Art. 802c, P.C.

From what we have said, it follows that the judgment of the trial court should be reversed and the cause remanded, and it is so ordered.

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.