Boyd v. State

• Decision Date: 16 February 1927
• Docket Number: (No. 10691.)
• Citation: 292 S.W. 1112
• Parties: BOYD v. STATE.
• Court: Texas Court of Criminal Appeals

292 S.W. 1112

BOYD v. STATE.

(No. 10691.)

Court of Criminal Appeals of Texas.

February 16, 1927.

Rehearing Denied April 20, 1927.

Commissioner's Decision.

Appeal from District Court, Cherokee County; C. A. Hodges, Judge.

Albert Boyd was convicted of driving and operating an automobile on a public highway while intoxicated, and he appeals. Affirmed.

Guinn & Guinn, of Rusk, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

BAKER, J.

The appellant was convicted of unlawfully driving and operating an automobile upon a public highway while intoxicated, and his punishment fixed at a fine of $25.

It was the contention of the state that on December 25, 1925, the appellant, while under the influence of intoxicating liquor, drove his automobile upon the public road in Cherokee county known as the Jim Hogg highway. The state introduced evidence to the effect that the appellant, at the time and place alleged, wrecked his automobile on account of being drunk; that said automobile caught on fire, and, while people were attempting to extinguish the flames, the appellant, under the influence of whisky, assaulted the state's witness Bedsole without provocation, and attempted to cut him with a knife. While the appellant failed to testify, he defended upon the ground, and introduced testimony to the effect, that he was not intoxicated or under the influence of intoxicating liquor at the time and place in question.

The indictment, omitting the formal parts, charged that the appellant "did then and there drive and operate an automobile upon a public highway, to wit, the Jim Hogg highway, leading from Alto, Tex., to Forrest, Tex., in said county, and, while so driving and operating said automobile on said public highway, was then and there under the influence of intoxicating liquor," etc. The appellant complains of the refusal of the court to sustain his motion to quash the indictment on the ground that same was duplicitous and charged two offenses in the same count, namely, that of driving the automobile and that of operating same upon said public highway, etc. There is no error shown in the ruling of the court on this motion. The indictment did not charge two different offenses in the same count, but only charged different methods of committing the same offense, and therefore was not duplicitous. Williams v. State, 100 Tex. Cr. R. 50, 271 S. W. 628; Goforth v. State, 100 Tex. Cr. R. 442, 273 S. W. 845; Klein v. State, 104 Tex. Cr. R. 189, 283 S. W. 791; Cupp v. State, 105 Tex. Cr. R. 55, 285 S. W. 322.

The appellant also attacks the indictment upon the ground that it is void in failing to allege that the appellant "unlawfully" drove and operated said automobile, etc. This court held against appellant on this contention in Ross v. State, 102 Tex. Cr. R. 364, 277 S. W. 667, and Morris v. State, 102 Tex. Cr. R. 578, 279 S. W. 273.

Appellant complains of the action of the court in permitting the state's witnesses to testify over his objection that, while the state's witness Bedsole was standing in the public road near where the appellant's automobile was burning, the appellant assaulted him and attempted to cut him with a knife; the appellant's objection to said testimony being that it was prejudicial and attempted to show extraneous offenses other than the one for which he was on trial. The court's qualification to this bill shows that these events were part of one entire transaction, occurring at the same time and place, and that the testimony complained of was admissible under the rule of res gestæ and also for the purpose of showing the condition of the appellant — whether he was drunk or sober. There was no error in the admission of this testimony. We think it was clearly admissible upon the ground of res gestæ. Revilla v. State, 103 Tex. Cr. R. 418, 280 S. W. 1064.

The appellant also complains of the action of the court in permitting the state's witnesses to testify over his objection that in their opinion the appellant was drunk at the time and place alleged in the indictment. The appellant contends that this was error on account of involving conclusions and opinions on the part of said witnesses. These witnesses stated that they saw appellant, and, ...