WOODLEY, Judge
The offense is murder without malice under Article 802c V.A.C.C.P.; the punishment, five years.
Four boys were playing soft ball in the front yard of the home of one of the boys. The boy with the bat hit the ball too hard, and it went out in the road. One boy followed the ball and was hit by an automobile driven by the appellant, who was intoxicated. Though not within the city limits, the locality was residential.
The most difficult question presented is whether or not a causal connection is shown between appellant’s intoxication and the accident.
The correct rule is found in the following quotation from Long v. State, 154 Tex. Cr. R. 587, 229 S.W. 2d 366, 369:
“Having driven his automoble upon the highway while intoxicated, as found by the jury, appellant was bound under the law to drive such car regardless of the conditions of the highway the car or the weather, in the same prudent manner as though he was entirely sober.
“If the collision resulted from the wet, slippery or icy pavement, the falling or fallen snow, the faulty condition of the wind[472]*472shield wiper, or even by reason of the loss of control under the conditions submitted as appellant’s defense, yet, if such collision could have been avoided under those circumstances if appellant had been sober rather than intoxicated, then a causal connection is established between the intoxication and the collision and the resulting death.
“Such is the effect of the court’s charge to the jury. A finding is required that the collision was an accident such as could have been avoided except for the intoxicated condition of the driver.”
Applying the rule stated to the facts before us, appellant having driven upon the highway while intoxicated, as found by the jury, was bound under the law to drive such car regardless of the conditions in the same prudent manner as though he was entirely sober, and if the accident resulted from the boy running into the path of the automobile he was driving, if it could have been avoided under those circumstances if appellant had been sober rather than intoxicated, then a causal connection is established between the intoxication and the accident and resulting death.
The jury having found that appellant’s intoxication “caused or substantially contributed to cause” the accident, this court must view the evidence in the light most favorable to the state in disposing of the above issue. Greiner v. State, 157 Tex. Cr. R. 479, 249 S.W. 2d 601, 604, and cases cited.
Miller, a 29 year old employee of Lone Star Steel Company, happened to be passing in his automobile, traveling from west to east. He saw the boys playing south of the highway, saw the ball pass immediately back of his autombile, and saw the deceased pursuing it. At this moment, he saw the automobile traveling from east to west, which was later shown to have been driven by appellant, 200 feet ahead and approaching him. Through his rear view mirror, Miller saw appellant’s automobile strike the child and knock him into the air. The boy was dead when his body came to rest more than a hundred feet away. No skid marks were found on the highway, and the other witnesses said they heard no sound and saw no indication that appellant applied his brakes. In fact, in his testimony, appellant does not claim that he applied his brakes.
Appellant gave several versions of the accident. He repeated[473]*473ly testified that the child was crossing the road from north to south. All of the evidence, save his testimony, was to the effect that the boys were playing ball in the yard south of the highway and that in chasing the ball across the highway the deceased crossed from south to north.
Appellant testified that he could not see the child before he struck him; that when he first saw him the child was up in the air; he also testified that the boy ran across about 8 feet in front of him and when he saw the boy he tried to miss him and pulled to the right; also that before he hit the child he could not see it and: “Q. Was the car between you and it? A. Yes, sir.”
On cross-examination appellant testified that when he saw the boy “he was right in the highway running out in the road from the right.” “Q. Was there any car obstructing your view? A. There was a car in front of me. I was trailing a car, behind him, about 20 yards behind him; “Q. All right now, you didn’t see the child until it was hit? A. No, sir, I didn’t.”
Appellant later, on cross-examination, testified that he pulled to the right after “the boy ran out in the road and I had struck him.
“Q. He was eight steps in front of you? A. About eight.
“Q. And he was coming from the right and you pulled to the right in the direction he was coming from ? A. I will tell you the truth, I just don’t know exactly which * * * .
“Q. You don’t know whch way he was coming from do you? A. No, sir, 1 don’t.”
On re-direct examination appellant further testified:
“Q. Charles, were you frightened at that time? A. Yes, sir, I was.
“Q. Do you know just exactly how the matter happened out there? A. No, sir, I don’t * * * .
“Q. Do you remember meeting a car out there anywhere, Charles? A. No, sir, I don’t.
“Q. You don’t remember meeting a car? A. No, sir.”
[474]*474Other evidence in the case was that appellant, after striking the child, drove on to the shoulder of the highway and speeded up, and did not stop until he was some half mile away.
Appellant’s written statement was introduced in evidence in which he said “When I stopped I tried to get Mason to drive the car but he wouldn’t do it.”
The third occupant of the car testified: “Q. Was Mason drunk at the time this collision occurred? A. He sure was.”
This witness also testifed that the car was going straight ahead and had not turned to left or right before the boy was struck.
In its final analysis, appellant’s testimony was that he did not know what happened other than that the automobile he was driving struck a child he did not see and hence made no effort to avoid striking. He not only did not see the child but did not remember meeting the autombile traveling in the opposite direction, which it is contended obstructed his view. If, as he testified, there was another automobile 20 yards ahead of appellant traveling in the same direction it could not have obstructed his view of the boy as he ran from the south side of the highway.
Appellant’s intoxicated condition could hardly be eliminated as a cause for appellant’s failure to see the child before striking him, and to properly judge the direction the child was moving and the distance. Had he veered to the left or slackened his speed at the time he should have seen the child, the accident could have been avoided.
We have concluded that the jury was authorized to find that had appellant been sober he could have avoided striking the child.
Having concluded that the evidence is sufficient to support the conviction, we address ourselves to a discussion of some of appellant’s other contentions.
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WOODLEY, Judge
The offense is murder without malice under Article 802c V.A.C.C.P.; the punishment, five years.
Four boys were playing soft ball in the front yard of the home of one of the boys. The boy with the bat hit the ball too hard, and it went out in the road. One boy followed the ball and was hit by an automobile driven by the appellant, who was intoxicated. Though not within the city limits, the locality was residential.
The most difficult question presented is whether or not a causal connection is shown between appellant’s intoxication and the accident.
The correct rule is found in the following quotation from Long v. State, 154 Tex. Cr. R. 587, 229 S.W. 2d 366, 369:
“Having driven his automoble upon the highway while intoxicated, as found by the jury, appellant was bound under the law to drive such car regardless of the conditions of the highway the car or the weather, in the same prudent manner as though he was entirely sober.
“If the collision resulted from the wet, slippery or icy pavement, the falling or fallen snow, the faulty condition of the wind[472]*472shield wiper, or even by reason of the loss of control under the conditions submitted as appellant’s defense, yet, if such collision could have been avoided under those circumstances if appellant had been sober rather than intoxicated, then a causal connection is established between the intoxication and the collision and the resulting death.
“Such is the effect of the court’s charge to the jury. A finding is required that the collision was an accident such as could have been avoided except for the intoxicated condition of the driver.”
Applying the rule stated to the facts before us, appellant having driven upon the highway while intoxicated, as found by the jury, was bound under the law to drive such car regardless of the conditions in the same prudent manner as though he was entirely sober, and if the accident resulted from the boy running into the path of the automobile he was driving, if it could have been avoided under those circumstances if appellant had been sober rather than intoxicated, then a causal connection is established between the intoxication and the accident and resulting death.
The jury having found that appellant’s intoxication “caused or substantially contributed to cause” the accident, this court must view the evidence in the light most favorable to the state in disposing of the above issue. Greiner v. State, 157 Tex. Cr. R. 479, 249 S.W. 2d 601, 604, and cases cited.
Miller, a 29 year old employee of Lone Star Steel Company, happened to be passing in his automobile, traveling from west to east. He saw the boys playing south of the highway, saw the ball pass immediately back of his autombile, and saw the deceased pursuing it. At this moment, he saw the automobile traveling from east to west, which was later shown to have been driven by appellant, 200 feet ahead and approaching him. Through his rear view mirror, Miller saw appellant’s automobile strike the child and knock him into the air. The boy was dead when his body came to rest more than a hundred feet away. No skid marks were found on the highway, and the other witnesses said they heard no sound and saw no indication that appellant applied his brakes. In fact, in his testimony, appellant does not claim that he applied his brakes.
Appellant gave several versions of the accident. He repeated[473]*473ly testified that the child was crossing the road from north to south. All of the evidence, save his testimony, was to the effect that the boys were playing ball in the yard south of the highway and that in chasing the ball across the highway the deceased crossed from south to north.
Appellant testified that he could not see the child before he struck him; that when he first saw him the child was up in the air; he also testified that the boy ran across about 8 feet in front of him and when he saw the boy he tried to miss him and pulled to the right; also that before he hit the child he could not see it and: “Q. Was the car between you and it? A. Yes, sir.”
On cross-examination appellant testified that when he saw the boy “he was right in the highway running out in the road from the right.” “Q. Was there any car obstructing your view? A. There was a car in front of me. I was trailing a car, behind him, about 20 yards behind him; “Q. All right now, you didn’t see the child until it was hit? A. No, sir, I didn’t.”
Appellant later, on cross-examination, testified that he pulled to the right after “the boy ran out in the road and I had struck him.
“Q. He was eight steps in front of you? A. About eight.
“Q. And he was coming from the right and you pulled to the right in the direction he was coming from ? A. I will tell you the truth, I just don’t know exactly which * * * .
“Q. You don’t know whch way he was coming from do you? A. No, sir, 1 don’t.”
On re-direct examination appellant further testified:
“Q. Charles, were you frightened at that time? A. Yes, sir, I was.
“Q. Do you know just exactly how the matter happened out there? A. No, sir, I don’t * * * .
“Q. Do you remember meeting a car out there anywhere, Charles? A. No, sir, I don’t.
“Q. You don’t remember meeting a car? A. No, sir.”
[474]*474Other evidence in the case was that appellant, after striking the child, drove on to the shoulder of the highway and speeded up, and did not stop until he was some half mile away.
Appellant’s written statement was introduced in evidence in which he said “When I stopped I tried to get Mason to drive the car but he wouldn’t do it.”
The third occupant of the car testified: “Q. Was Mason drunk at the time this collision occurred? A. He sure was.”
This witness also testifed that the car was going straight ahead and had not turned to left or right before the boy was struck.
In its final analysis, appellant’s testimony was that he did not know what happened other than that the automobile he was driving struck a child he did not see and hence made no effort to avoid striking. He not only did not see the child but did not remember meeting the autombile traveling in the opposite direction, which it is contended obstructed his view. If, as he testified, there was another automobile 20 yards ahead of appellant traveling in the same direction it could not have obstructed his view of the boy as he ran from the south side of the highway.
Appellant’s intoxicated condition could hardly be eliminated as a cause for appellant’s failure to see the child before striking him, and to properly judge the direction the child was moving and the distance. Had he veered to the left or slackened his speed at the time he should have seen the child, the accident could have been avoided.
We have concluded that the jury was authorized to find that had appellant been sober he could have avoided striking the child.
Having concluded that the evidence is sufficient to support the conviction, we address ourselves to a discussion of some of appellant’s other contentions. He first asserts that the court erred in failing to submit to the jury his affirmative defense that the deceased child ran into the right front fender of his automobile. He bases his contention upon isolated questions and anwers adduced during the cross-examination of two of the boys who were playing ball. They both testified that the deceased ran [475]*475out into the highway chasing the ball and got almost across before he “got hit.” While it is true that on cross-examination they answered in the affirmative when being asked if the deceased had run into the right front fender of the car as he was running after the ball and even that it was the right side of the car which he had run into, we cannot bring ourselves to conclude that there was any evidence that would have supported a defensive theory that the deceased had crossed the highway, turned around and ran back into the right side of appellant’s automobile. All the testimony focused the point of impact at the right front fender and hood and indicated that the deceased was almost across the road when he was hit. It is obvious from their entire testimony that the witnesses were relating the fact that the deceased was nearly at the edge of the pavement when he was hit by the right fender of appellant’s automobile, which was traveling in the far lane of traffic.
Appellant’s next complaint relates to the refusal of the court to permit appellant’s witness Lawton, his companion on the day in question, to testify that appellant was driving in a cautious manner and just as a man who had not been drinking. Prior to such questions being propounded, Lawton had testified that appellant was driving at 40 miles per hour and in his proper lane of traffic. The state’s objections that such questions called for a conclusion of the witness were sustained.
We adopt the words of Judge Davidson in Williams v. State, 54 Tex. Cr. R. 642, 114 S.W. 802, when, in speaking of a similar question, he said: “We are of opinion that the rejection of the testimony, if error, is not of sufficient importance to require a reversal of the judgment.”
Appellant’s last complaint is addressed to that portion of the testimony of Officer Walker in which he said that highway patrolmen often smell liquor on people’s breath, conclude that they are not intoxicated and file no charges. The objection was only that the question was leading, suggestive and in contradiction to his prior testimony. If error, it is not ground for reversal.
Finding no reversible error, the judgment of the trial court is affirmed.