Vogt v. State

261 S.W.2d 176, 159 Tex. Crim. 207, 1953 Tex. Crim. App. LEXIS 1841

Opinions

WOODLEY, Judge.

The conviction is for aggravated assault with a motor vehicle, as defined by Art. 1149 V.A.P.C.; the punishment, a fine of $250.

The information conforms to the complaint and is in two counts. Count 1 charges that appellant “did then and there drive and operate a motor vehicle on a public highway in Bexar County, Texas, and did then and there commit an aggravated assault in and upon the person of Oren L. Donner, by then and there upon said public highway willfully and with negligence colliding with and causing injuries less than death to the person of said Oren L. Donner.”

Count 2 contains similar allegations except that it was there alleged that appellant collided with a vehicle in and on which Donner was riding, rather than that he collided with Donner.

Appellant moved to quash the complaint and information because it alleged that the collision was both “willful” and “with negligence.” ■

Similar contentions were overruled by this court in Warren v. State, 140 Tex. Cr. R. 119, 143 S.W. 2d 620; Young v. State, 120 Tex. Cr. R. 39, 47 S. W. 2d 320; Huff v. State, 58 S.W. 2d 113; Overmire v. State, 142 Tex. Cr. R. 346, 152 S.W. 2d 769; and Mackey v. State, 158 Tex. Cr. Rep. 276, 255 S.W. 2d 197.

Appellant also complains that the acts of negligence relied upon by the state were not alleged.

It has been held that allegations following the language of the statute, such as here found, are sufficient and the state is not required to set forth the facts constituting the negligent acts. See Young v. State, supra; Merryman v. State, 153 Tex. Cr. Rep. 593, 223 S.W. 2d 630; Nichols v. State, 155 Tex. Cr. Rep. 521, 236 S.W. 2d 801.

We have held that the negligence applicable to aggravated assault with a motor vehicle is the same as that applicable to negligent homicide defined in Art. 1233 P.C., (one of the articles of the chapter of the Penal Code dealing with negligent homicide,) and therefore may arise out of a failure to use ordinary care. Young v. State, 120 Tex. Cr. Rep. 39, 47 S.W. 2d 320; Guajardo v. State, 139 Tex. Cr. Rep. 201, 139 S.W. 2d 85.

The case was submitted to the jury on this theory and the evidence is sufficient to sustain the verdict.

Donner was struck as he sat on his motorcycle near the curb and was seriously injured. He did not know what struck him.

Other testimony of the state was to the effect that the car which struck Donner was traveling at a speed of some 30 to 40 miles per hour on Hildebrand Avenue in San Antonio and had just passed another car traveling in the same direction and returned to its right lane when it collided with Donner.

The driver of the car which appellant had just passed testified without objection that whoever was driving the car that struck Donner “. . . was reckless at the time he was passing me . . .” He testified, also, that he saw the motorcycle or the man in the air “. . . hit high enough where we could see the body.”

The issue which was sharply contested was as to the identity of the car which collided with the motorcycle and injured Donner, and not as to whether the driver of such car was negligent.

The state’s testimony was to the effect that appellant’s car, in which three other passengers were riding and which appellant was driving, struck Donner. The driver of the car which was following at the time took the license number of appellant’s car and positively identified such car as that which struck Donner.

The parties riding in appellant’s car testified that he was the driver but denied that such car was involved in a collision. Their testimony tended to show that a car following them, driven by James Theis, may have been the car which collided with and injured Donner. Theis testified for the state. His testimony was to the effect that appellant’s car and not his was involved in the collision.

The evidence sustains the jury’s verdict and we find no reversible error.

The judgment is affirmed.