Davis v. State, 21699.

• Decision Date: 29 October 1941
• Docket Number: No. 21699.,21699.
• Citation: 155 S.W.2d 801
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

155 S.W.2d 801

DAVIS v. STATE.

No. 21699.

Court of Criminal Appeals of Texas.

October 29, 1941.

Rehearing Denied November 26, 1941.

Appeal from District Court, Kaufman County; G. O. Crisp, Judge.

R. C. Davis was convicted of driving an automobile on a public highway while intoxicated, and he appeals.

Affirmed.

C. C. McKinney, of Cooper, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was indicted as a second offender, charged with driving an automobile on a public highway while intoxicated, and upon conviction therefor was, under the statute, given a penalty of two years in the penitentiary.

It seems that appellant, his wife, his father-in-law, and one Carmichael were driving over the territory near their abode, and finally wound up near Kaufman, in Kaufman County, appellant driving and weaving about over the highway, narrowly escaping collisions with other vehicles thereon. That they were followed by some officers, who made an effort to detain them, but appellant refused to stop. The officers, however, followed appellant, who drove through a red light in the city of Kaufman, and, parking his car near the court house, hurried into the court house where he was arrested. The officers testified that appellant was drunk, that he staggered some in his walk, and talked as though his tongue was thick, and they smelled intoxicating liquor on his breath. It was also shown that while the officers were in pursuit of appellant's car some one threw a glass jar or bottle out of the car, and upon its recovery some of the witnesses testified that it had some liquid therein that smelled like intoxicating liquor.

Appellant offered the defense, established by certain witnesses other than himself, that he suffered from violent headaches at times, and that he had taken several tablets of amytal, a drug, a short time prior to his leaving home in his car, and that at times such drug made him act wild and like a drunken man; that the discarded jar contained only wine, and he had taken only a small drink out of it prior to his arrest. Appellant's father-in-law testified that appellant acted like a drunken man, but he was drunk on amytal and not on intoxicating liquor.

We think the indictment, which was complained of, charged not only the present offense but also, in the second count, a prior conviction of a similar offense for the purpose of enhancing the penalty. See Hail v. State, 106 Tex.Cr.R. 511, 293 S.W. 831.

Appellant's bill of exceptions No. 3 complains because of the trial court's failure to give a requested instruction defining the term "intoxicated." It has often been held that in cases similar to the present one it was not necessary to define such term. Lockhart v. State, 108 Tex.Cr.R. 597, 1 S.W.2d 894; Moynahan v. State, 140 Tex.Cr.R. 540, 146 S.W.2d 376.

Bill of exceptions No. 4 complains because of the failure to give a requested instruction relative to appellant's defense that his condition, at the time of the charged offense, was caused by the use of a drug rather than by the use of intoxicating liquor. We note that the court in his charge told the jury, in so many words, that if they believed that the appellant's condition at the time of such driving arose solely from the use of amytal or other drugs taken by him, or have a reasonable doubt thereof, to acquit him, as well as also charging the jury that they must believe beyond a reasonable doubt that such intoxicated condition, if any, was caused by the use of intoxicating liquor.

Appellant also urges that the person formerly convicted of driving an automobile while intoxicated on January 3, 1940, was not shown to have been this appellant. We do not agree with this contention. Sheriff Reeves testified that he was present in court in Lamar County when this defendant was tried and convicted for drunken driving; that he thought he was also present when he was sentenced. The State then introduced the judgment and sentence in such case, upon a plea of guilty, against R. C. Davis, the witness Reeves having testified that the person thus tried was the same as the defendant herein. We think such sufficiently established the identity of this appellant as the same person who was previously convicted in Lamar County.

Appellant also complains of the trial court's statement in the charge in which it is stated that "By an offense of like character is meant an offense not necessarily the same as that for which defendant is being tried, but similar in nature." It was not necessary to define the term at all to the jury, such being a matter of law for the court. In any event each of the set forth charges in the indictment were the same or similar in nature, and no confusion thereof could have operated on the minds of the jury.

We do not think Mrs. Davis, the mother of appellant, was sufficiently qualified to state what effect an old injury to appellant's head had on his health, she not being shown to have any peculiar abilities as a diagnostician of such matters. Again, there was abundant testimony from appellant's witnesses as to what his ailments were and how they affected him while suffering therefrom.

Appellant offers the proposition that because of the recent amendment of...