Brown v. State

• Decision Date: 20 January 1926
• Docket Number: (No. 9013.)
• Citation: 279 S.W. 837
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

279 S.W. 837

BROWN v. STATE.

(No. 9013.)

Court of Criminal Appeals of Texas.

January 20, 1926.

Appeal from Martin County Court; A. C. Eidson, Special Judge.

Doc Brown was convicted of negligent homicide, and he appeals. Reversed and remanded.

B. Frank Haag, of Midland, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

MORROW, P. J.

The offense is negligent homicide; punishment fixed at confinement in the county jail for a period of three months. The transaction upon which the prosecution is based was a collision in which the automobile driven by the appellant collided with a truck which was standing upon the highway. Two girls were in the car driven by the appellant. One of these was his sister, Alice Brown; the other was Miss Dollie Wilson, the deceased.

Paragraphs 2 and 4 of the court's charge present the state's case. They are respectively as follows:

"You are charged that the law of this state applying to this case is that every person who shall operate any motor vehicle on the public highways of this state, shall drive same in a careful and prudent manner, and at a rate of speed not greater than is reasonable and proper, having due regard for the traffic and use of the highway, and no person shall operate or drive any motor vehicle at such a rate of speed as to endanger the life or limb of any person or the safety of any property, and the law further provides that it shall be unlawful in any event to drive a motor vehicle at a rate of speed greater than 35 miles per hour, and you are charged that the operation of a motor vehicle not in accordance with the law as herein given you constitutes a violation of the law.

"Now, bearing in mind the foregoing instructions, if you believe that in the county of Martin and the state of Texas, on or about the 26th day of January, 1924, the defendant was operating a motor vehicle in an unlawful manner, as that term has been hereinbefore defined to you, and that as a result of negligence, in the operation of such motor vehicle, he caused the death of Dollie Wilson, you will find him guilty and assess his punishment at a fine not to exceed the sum of $3,000, or by imprisonment in the county jail not exceeding three years."

According to the evidence, the driver of a Ford truck, in which he was hauling a pair of mules, was stopped on the road, and, while standing there, the appellant drove his car into the rear end of the truck. Prenlena Pena, the driver of the truck, testified that the appellant's car was traveling "much fast." A state's witness who drove into the highway upon which the collision occurred from a byroad and who was traveling upon the highway at the rate of about 15 or 18 miles an hour, testified that the appellant's car was going faster than that in which the witness was riding. The highway was 18 feet wide. With the truck standing on the road, there was about 8 feet of road in which to pass. The truck was standing about 80 feet from a curve, and was not visible from the direction in which the appellant approached until after his car had passed the point of the curve a sufficient distance for the lights to reveal the presence of the truck. There was testimony that it would have been impossible for one driving a Studebaker car of the weight of...