Cadenhead v. State, 35928
| Decision Date | 26 June 1963 |
| Docket Number | No. 35928,35928 |
| Parties | Thomas E. CADENHEAD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Don Wilson, F. T. Gauen, Jr., Dallas, for appellant.
Henry Wade, Dist. Atty., Neill English, Frank Wright and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., of Austin, for the State.
The offense is negligent homicide in the second degree; the punishment, three years in jail.
In view of our disposition of this case, a recitation of the facts will not be necessary.
The offense was alleged to have been committed on or about the 2nd day of January, 1961.
The complaint was sworn to on September 24, 1962, and bears file mark showing it to have been filed on September 25, 1965 (an impossible date). The information is not dated, nor does it recite that it was based upon a complaint then pending. There is nothing in the record to show when it was filed other than that it also bears file mark indicating that it was filed on September 14, 1965.
A valid complaint is a prerequisite to a valid information and must be made prior to the presentment of the information. Womack v. State, 162 Tex.Cr.R. 435, 286 S.W.2d 140, and Billingslea v. State, 160 Tex.Cr.R. 244, 268 S.W.2d 668.
Assuming that the fault lies in the preparation of the transcript, we pass to other claims of error which must be sustained.
The negligent act alleged in the information was the 'driving and operating a motor vehicle at a greater rate of speed than 30 miles per hour on a public street and highway there situate, said speed being unreasonable and imprudent speed under the conditions then existing having regard to the actual and potential hazards.'
The court's charge to the jury correctly followed these allegations and required a finding of negligence in the speed appellant was driving. The prosecutor in his argument said, There was nothing improper in the argument so far, but the prosecutor continued, 'Don't you think that was negligent for Cadenhead (appellant) to drink and drive?' A prompt objection was overruled, and in this we have concluded the court fell into error. In Daivs v. State, 114 Tex.Cr.R. 620, 26 S.W.2d 649, this Court said, 'The state bound itself to the theory, both by its pleading and...
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Vela v. Estelle
...of testimony that deceased was the father of eight children not reversible error where objection not timely made); Cadenhead v. State, 369 S.W.2d 44 (Tex.Cr.App.1963) (reversible error to admit testimony by mother of deceased that he was sole support of her and her husband); Orozco v. State......
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Vela v. State, 49203
...v. State, 160 Tex.Cr.R. 40, 267 S.W.2d 417 (1954); Orozco v. State, 164 Tex.Cr.R. 630, 301 S.W.2d 634 (1957); Cadenhead v. State, 369 S.W.2d 44 (Tex.Cr.App.1963); Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App.1965); Whan v. State, 438 S.W.2d 918 (Tex.Cr.App.1969); Chism v. State, 470 S.W.2d ......
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Clark v. State
...the acts alleged in the charging instrument to prove the recklessness or criminal negligence of the conduct. See Cadenhead v. State, 369 S.W.2d 44, 45 (Tex. Crim. App. 1963); 42 George E. Dix & John M. Schmolesky, Texas Practice Series: Texas Criminal Practice & Procedure § 25:98 (3d ed. 20......