Spraglin v. State

334 S.W.2d 798, 169 Tex. Crim. 470, 1960 Tex. Crim. App. LEXIS 2983
Court of Criminal Appeals of Texas·Decided March 16, 1960·No. 31181·Published·Cited by 6 cases

Opinions

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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Spraglin v. State, 334 S.W.2d 798, 169 Tex. Crim. 470, 1960 Tex. Crim. App. LEXIS 2983 (Tex. 1960).

334 S.W.2d 798 (Spraglin v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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