Baggett v. State, 24645
| Decision Date | 08 February 1950 |
| Docket Number | No. 24645,24645 |
| Citation | 154 Tex.Crim. 618,229 S.W.2d 801 |
| Parties | BAGGETT v. STATE. |
| Court | Texas Court of Criminal Appeals |
Marvin H. Miller, New Boston, Brown & Brown, Texarkana, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
Appellant was charged under Art. 802c, Vernon's Ann.P.C., with the offense of driving while intoxicated and by accident and mistake, as he approached an automobile upon a public highway, he struck and thereby killed one William Thompson. Upon his conviction therefor, he was assessed a penalty of two years in the state penitentiary.
The testimony shows that one Luther Rainey, and his married daughter, with two babies and two other children of Rainey, together with his father-in-law, William Thompson, the deceased, were riding in Mr. Rainey's pickup truck on a highway in Bowie County on the day in question. The gasoline feed pipe of the truck became obstructed and the pickup was driven to one side and stopped, and Mr. Rainey began working on the same. Mr. Thompson, the deceased, was assisting him by holding up the hood covering. While they were thus engaged the appellant, his wife, appellant's brother, and another woman were driving on this road in the same direction in which Rainey was headed. Appellant's car struck this pickup and knocked the same onto and against Mr. Thompson, inflicting upon him injuries from the effect of which he soon died.
The State alleged and proved that appellant was intoxicated at such time, which fact, however, was strenuously denied by appellant and also by his witnesses.
Appellant offered the testimony of witnesses evidencing the fact that he was not intoxicated at such time, but that when he first observed the Rainey truck and turned out of the road to avoid hitting the same, a car coming from the direction in which he was traveling caused appellant to swerve toward the pickup and he accidentally struck the rear bumper of same and thereby caused Mr. Thompson to meet his death; that he was not intoxicated at such time. However, the jury found against such contention.
Bill No. 1 relates to a request for a peremptory instruction of not guilty and is overruled; and Bill No. 2 is also without merit and is overruled.
Bill No. 3 relates to the trial court's refusal to charge relative to the drunkenness of appellant's brother, who was one of the occupants of the car that caused Mr. Thompson's death. Such a charge as requested would have been upon the weight of the evidence and was properly refused.
Bill No. 4 relates to the testimony of one witness concerning the drunkenness of appellant's brother, who was one of the occupants of appellant's car, as above stated. The testimony shows that on the day of the tragedy, the Baggett family held a reunion at the home of Archie Baggett, and appellant carried two carloads of visitors to such home; that the brother, Leland Baggett, was with appellant on at least one of these trips; that appellant and his brother stopped at three places and drank beer at each place in the afternoon of the day of the accident; that at the time of the accident, appellant and his wife, Leland Baggett and another woman, whom appellant thought was Leland's wife, were in the car which caused the collision. It also appears from the record that prior to this fatal drive, Leland had seemingly become offended about something that took place at his brother's house and left his brother Archie's home; that appellant had followed him and had finally gotten Leland and this woman in the car and was driving away when the accident occurred.
The testimony of Rainey's married daughter shows that just before the pickup was struck, appellant was looking back toward the rear seat of his car when a woman in the back seat hollered; that appellant then looked around and twisted the steering wheel of his car and struck the pickup, which was off the paved portion of the highway.
We think the actions of the parties present in the car, as well as the condition of the brother as to sobriety, were part of the res gestae.
Appellant testified that he had drunk one bottle of beer at 2:00 o'clock, one at 3:30 o'clock, and one at 4:00 o'clock. He said, 'Yes, I was under the influence of this beer,' and they had a case of beer with them, but he denied being intoxicated. Earlier in the day, according to appellant, his brother Leland was not intoxicated but he drank a bottle of beer every time that appellant drank one. However, appellant's wife testified that Leland was 'very intoxicated' in the morning of the day of the accident; that on the day of the accident, Leland, while intoxicated, got into an argument with someone and he left and went to a nearby store; that she and her husband and this woman went after him; that he refused to return to the home, so they decided to get him in the car; that they drove around for a while, Leland sitting in the front seat with appellant and his wife, and the woman was in the rear seat. They started driving down the highway and after going a short distance the wreck occurred. This latter portion above is the testimony of appellant's wife.
We also overrule Bill No. 5 which is similar to Bill No. 4.
Bill No. 6 relates to the refusal of the trial court to allow Mrs. C. L. Cosnell, the other woman in appellant's car, to state that at the time of the accident, appellant had to make a choice of either hitting the pickup or a head-on collision with an approaching automobile. This seems to be hearsay, and a conclusion of the witness, who could only describe the scene itself, and surely she did not know what impression such scene made upon the mind of the appellant.
Bill No. 7 presents nothing serious, so we think, and it is therefore overruled.
Bills Nos. 8 and 9 are overruled. We think the charge of the trial court carefully and fully set forth the law of the case to the jury.
It is claimed that the indictment herein is fatally defective in that it fails to allege that the highway mentioned therein is in Bowie County, Texas. The allegation complained of reads of part as follows: '* * * that Floyd Baggett on or about the 8th day of May, ...
To continue reading
Request your trial
-
Doswell v. State, 26069
...provoked or invited thereby. Such a bill is fatally defective. Baker v. State, 154 Tex.Cr.R. 116, 225 S.W.2d 828, and Baggett v. State, 154 Tex.Cr.R. 618, 229 S.W.2d 801, and cases cited in 13 Texas Digest, Crim.Law Bill of exception No. 3 relates to the argument of the District Attorney Wa......
-
Cotner v. State, 26918
...by driving on a public highway in Wood County while intoxicated. Johnson v. State, 149 Tex.Cr.R. 380, 194 S.W.2d 771; Baggett v. State, 154 Tex.Cr.R. 618, 229 S.W.2d 801; Heath v. State, Tex.Cr.App., 244 S.W.2d 815; Webb v. State, Tex.Cr.App., 251 S.W.2d The complaint information and judgme......
-
McCreary v. State, 29116
...charges an offense under Article 802c, Vernon's Ann.P.C. Houston v. State, 143 Tex.Cr.R. 460, 158 S.W.2d 1005; Baggett v. State, 154 Tex.Cr.R. 618, 229 S.W.2d 801. It is insisted that the place where the collision occurred was not a public street because it had not been so designated by cit......
-
Heath v. State
...allegation that the offense was committed in Cass County, Texas, and therefore find no error reflected by these bills. Baggett v. State, Tex.Cr.App., 229 S.W.2d 801. Bill of exception No. 2 complains of the testimony of the witness Sanders concerning the taking of a blood specimen from appe......