Butterfield v. State, 29899
| Decision Date | 29 October 1958 |
| Docket Number | No. 29899,29899 |
| Citation | 167 Tex.Crim. 64,317 S.W.2d 943 |
| Parties | Charles Henry BUTTERFIELD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
[167 TEXCRIM 65] Werner H. Gohmert, Alice, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is driving an automobile upon a public highway while intoxicated; the punishment, thirty days in jail and a fine of $50.
It is conceded by appellant, in his brief, that the evidence is sufficient to sustain the conviction. It will not be discussed further than to say that, in addition to opinion evidence of the arresting officer and other witnesses for the State, an analysis of a sample of blood taken from appellant showed that it contained '3.5 milligrams of alcohol per c. c. of blood.'
The sole claim of error is predicated upon the trial court's failure to submit as a defense that appellant drove his automobile upon a public highway because of necessity; that is, if the jury should find that he drove his automobile upon a public highway while intoxicated, but further found that he did so only for the purpose of seeking medical treatment for a serious head injury which he had sustained in his apartment, they should acquit.
We are aware of no such defense and decline to hold that an intoxicated driver of an automobile upon a public highway commits no offense if it be shown that a necessity existed, or that it appeared to him to be necessary that he make the journey.
The judgment is affirmed.
Appellant was arrested about 2:30 o'clock, a. m., when the automobile he was driving crossed over the street, after striking the curbing, and ran into a parking lot and guard rail.
Appellant insisted that he was not intoxicated and that the accident occurred as a result of his weakened condition from loss of blood.
The arresting officer testified:
According to appellant's testimony and that of one of his companions, corroborated in certain respects by others, he and the companion had engaged in drinking the early part of the night and the companion carried him to his (appellant's) place of residence, a garage apartment, about 1:45 o'clock, a. m. As appellant entered his bedroom he received a lick on his head which rendered him unconscious. When he awoke, there was a pool of blood where he was lying on the floor. He realized he was bleeding from the wound and that he required immediate medical attention. He had no telephone in his apartment, and he lived alone. He decided to try to get to the hospital and was on his way when the wreck occurred as a result of his having fainted while driving.
Under such circumstances, appellant, by exception to the charge as well as by special requested charge, insisted that he was entitled to have the jury instructed to the effect that if he was driving his automobile in search of medical attention for his injury, which services were deemed necessary for that purpose, he would not be guilty.
The trial court refused to so instruct the jury.
The law has long recognized that a criminal offense may be excused if committed under necessity. 22 C.J.S. Criminal Law Sec. 49, p. 115; Wharton's Criminal Law, Vol. 1, Sec. 410.
Our law of self-defense in a murder case arises out of that necessity for...
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