Guajardo v. State, 20905.

• Decision Date: 20 March 1940
• Docket Number: No. 20905.,20905.
• Citation: 139 S.W.2d 85
• Parties: GUAJARDO v. STATE.
• Court: Texas Court of Criminal Appeals

139 S.W.2d 85

GUAJARDO v. STATE.

No. 20905.

Court of Criminal Appeals of Texas.

March 20, 1940.

Rehearing Denied May 1, 1940.

Appeal from County Court at Law No. 1, Bexar County; McCollum Burnett, Judge.

Tom Guarjardo was convicted of an aggravated assault and he appeals.

Affirmed.

Jno. K. Weber and C. O. Wolfe, both of San Antonio, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged by complaint and information with committing an aggravated assault by means of driving an automobile in and upon the person of one Bessie Heiner, and causing to her injuries less than death, and was by the jury found guilty and assessed a fine of $100 and imprisonment in the county jail for one month.

The facts herein, from the State's standpoint, show that William Coulterman owned a pick-up truck, and there were riding therein seven people, among others the complaining witness, Bessie Heiner, her brother William and her mother, Mrs. Myrtle Heiner, her aunt Mrs. Coleman, and Arthur Heiner, her cousin, the uncle William Coulterman driving the truck. Bessie Heiner and her aunt were sitting on the floor of the pick-up truck with their feet hanging out the back end. The appellant and his daughter, with a baby in her arms, were riding in a Chevrolet car, coming up behind this pick-up truck. According to the State's witnesses this car of appellant's was zigzagging or moving from side to side of the road at a speed of probably fifty miles per hour, and while so moving, appellant driving, it struck the back of this pick-up truck, which was moving at the rate of about twenty-five miles per hour, and crushed and mangled the foot and leg of Bessie Heiner, to such an extent that she was knocked out of the truck and was rendered unconscious, and was taken to a hospital where she remained for some two weeks. At the time of the accident appellant remained at the wheel of his car, and again, for some unexplained reason, he propelled his car against the pick-up truck and struck it a second time.

The appellant's version of the accident was that he was driving down this public highway at a moderate rate of speed, and that he came up close behind the pickup truck, and was waiting to pass around it when he saw another car approaching from the opposite direction. That suddenly, without any warning signal of any kind, the person driving the pick-up started to stop, and appellant could not bring his car to a stop before he struck the pick-up truck, and thus injured the girl, Bessie Heiner. That he turned to the left as far as possible, but could not avoid striking the girl and the truck on its left-hand side. That he was driving in his usual and accustomed manner, and in order to avoid injury to his daughter, the child and himself he was compelled to strike the truck, and as a consequence the injury to the girl followed.

Appellant's bill of exceptions No. 1 complains of the fact that while the jury was deliberating on their verdict, and evidently after they had arrived at an agreement, they called the deputy sheriff in charge of them and asked him as to the form in which they should render and return their verdict. This verbal statement was by the officer reported to the judge trying the case, and he instructed the officer to say to the foreman of the jury that the charge of the court contained a blank form for their verdict, which the jury might fill out and have the same signed by their foreman, such blank form being as follows:

"Verdict of the Jury.

"We, the jury, find the defendant, Tom Guajardo ____.

                                            "_______
                                 "Foreman of the Jury."
                

This is complained of as being a verbal communication to the jury, and as an additional instruction to them not in writing, out of the presence of the defendant, and without his knowledge, or the knowledge or consent of his counsel. We do not think the statement thus made relative to where the jury could find a form for their verdict could be termed an additional instruction. It will be noted that the form thus referred to was not suggestive in any way as to what the verdict should be. Such form could be used either for a verdict of guilty or not guilty, just as the jury should determine, and we think the statement thus made to the foreman of the jury amounted to no more than calling their attention to the charge, and directing them to read the same. It is to be observed that this cause was a misdemeanor, and would probably be governed by Art. 679, C.C.P., which reads as follows: "In felony but not in misdemeanor cases, the defendant shall be present in the court when any such proceeding is had as mentioned in the three preceding articles, and his counsel shall also be called." The three preceding articles referred to in the above quoted Art. 679 are concerned with the communications of the jury with the trial court (Art. 676), their asking for further instructions from the court (Art. 677), and a re-examination of a witness if the jury so desired (Art. 678). We see no error reflected in this bill.

Bill of exceptions No. 4 presents the following proposition: It had been herein testified by appellant that while he was driving at a reasonable rate of speed down the public highway he came up behind the pick-up truck, and just as he was attempting to pass around such truck another automobile coming towards appellant was meeting such truck, and that the driver of the truck, without giving any visible or audible sign of his intention, began to slow down the speed of this truck so abruptly that appellant, in order to save himself, his daughter and the child in appellant's car from injury and the probable loss of life, had to strike the truck and injure the girl Bessie Heiner in thus protecting the persons in appellant's car, and therefore such action upon his part was in defense of the safety and lives of such persons, and would amount in law to self-defense. This bill contains an exception to the trial court's refusal to thus treat such actions as thus defensive in the charge given to the jury. It is to be observed, however, that the court did charge the jury, in substance, that if the driver of the pick-up truck did stop or attempt to stop his truck while immediately in front of appellant's car without first seeing if there was sufficient space for such movement to be made in safety, etc., and without giving a visible or audible signal of such driver's intention to thus stop his vehicle, and if such actions on the part of the truck driver were the sole cause of such collision and the injuries to Bessie Heiner, or if they had a reasonable doubt thereof, to acquit the defendant. It will be noticed that the trial court gave approximately that which was requested by appellant, with the exception of his idea of self-defense and defense of another in that appellant contended that he had the right, if such was necessary, to save himself and daughter from injury, and when he found himself in such a condition he would have the right to strike the truck, and incidentally to injure the girl, such act being in his necessary self-defense or in the defense of another.

It will be remembered that the gist of this offense is the negligence of appellant who was charged with thus operating his automobile. Such negligence is that which is defined in the chapter on negligent homicide. See Art. 1149, P.C. The chapter on negligent homicide requires that degree of care and caution as a man of ordinary prudence would use under like circumstances. Art....