Harr v. State

• Decision Date: 23 May 1923
• Docket Number: (No. 7199.)
• Citation: 263 S.W. 1055
• Parties: HARR v. STATE.
• Court: Texas Court of Criminal Appeals

263 S.W. 1055

HARR v. STATE.

(No. 7199.)

Court of Criminal Appeals of Texas.

May 23, 1923.

On Motion for Rehearing, June 25, 1924.

Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.

R. W. Harr was convicted of negligent homicide, and appeals. Reversed and remanded.

Oscar H. Calvert and Baskett & De Lee, all of Dallas, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone, and R. G. Storey, Asst. Attys. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the criminal district court of Dallas county of negligent homicide, and his punishment fixed at one year in the county jail.

By the action of the court below in sustaining appellant's motion to quash as to certain counts in the indictment only misdemeanor counts were left. Four counts were submitted to the jury, each charging negligent homicide in the second degree; that is, homicide by negligence in the performance of an unlawful act. In the first count submitted it was charged that appellant operated an automobile in a careless manner upon a public highway without due regard for the safety and convenience of pedestrians and other vehicles and traffic on such highway, and that while so operating same he caused the death of Miss Slevins; in the next count submitted it was charged that appellant operated said automobile, and while turning upon a public highway failed to see if there was sufficient space for turning said car in safety, and that he thus caused the death of said party; in the next count it was charged that appellant operated the car upon such highway while in an intoxicated condition, and that he thus caused her death; and in the remaining count it was charged that appellant so operated his car from a half hour after sunset to a half hour before sunrise without proper lights, as to cause said death.

The trial court instructed the jury that each of the things charged in the respective counts was an unlawful act, and that, if they believed beyond a reasonable doubt that appellant did any one of said things above specified in the manner alleged, and while so engaged did then and there strike and kill Mary Slevins, he should be found guilty and his punishment fixed as stated. The jury found a general verdict of guilty of negligent homicide of the second degree, and fixed appellant's punishment as first mentioned.

We are confronted upon the threshold of this case with the following proposition in procedure. By law the terms of the criminal district court of Dallas county extend over eight weeks. Appellant's motion for new trial herein was overruled on March 27, 1922, and on that date the trial court entered an order granting thirty days "from this date" in which to file bills of exception. The trial term of the court below ended on April 1, 1922. No bills of exception were filed within thirty days from March 27th, but on April 29th following, after the expiration of the period fixed originally by the trial court, and after the end of said term, he attempted to extend the time for such filing by having an order made of said date directing the clerk to enter an order as of date April 26th, giving additional time for filing bills of exception. We regret that under the uniform holdings of this court we cannot uphold the action of the learned trial judge. If the time originally given be not enough, and it be desired that an extension of said time be had, an application must be made to the trial court within such time limit fixed, and an order must be entered within the same time granting the extension. That the court attempted by an order dated after the expiration of the time and of the term to have it appear that the extension order was made within the time limit originally fixed adds no validity to such attempted extension. Griffin v. State, 59 Tex. Cr. R. 424, 128 S. W. 1134; Sanders v. State, 60 Tex. Cr. R. 34, 129 S. W. 605; Armstrong v. State, 60 Tex. Cr. R. 59, 130 S. W. 1011; Presley v. State, 60 Tex. Cr. R. 102, 131 S. W. 332; Roberts v. State, 70 Tex. Cr. R. 588, 157 S. W. 1193; Glasper v. State, 76 Tex. Cr. R. 310, 174 S. W. 585; Gowan v. State, 73 Tex. Cr. R. 222, 164 S. W. 6; Wertheimer v. State, 75 Tex. Cr. R. 356, 171 S. W. 224; Parker v. State, 83 Tex. Cr. R. 81, 200 S. W. 1083; Hart v. State, 86 Tex. Cr. R. 653, 218 S. W. 1054. Appellant's bills of exception were not filed herein until May 25, 1922, and therefore cannot be considered by us.

There appears in the record what purports to be exceptions taken to the charge of the trial court, but same are in no way authenticated or approved by the trial court, and for such reason cannot be considered.

We find nothing wrong with the indictment, or that portion of it left after appellant's motion to quash was sustained as to certain counts.

The only question remaining is that of the sufficiency of the testimony. That the young lady in question was struck by appellant's automobile about 10:30 at night on a public highway, to wit, Hall street in the city of Dallas, and that her death was caused thereby, seems not in dispute. The state's testimony supports the proposition that appellant was under the influence of intoxicating liquor at the time. This he denies, and to some extent supports his contention. The state's case rests upon the fact that appellant had turned north into Hall street off of Cole street, and that he gave no signal or warning, and had no lights upon his car until just before he struck the deceased, and that he struck her with such force as to crush practically all of the ribs in one side of her body, to break one of her arms in several places, to fracture the bones in one hand, and to cause a ragged wound across the front of her skull, extending down about to her nose. Appellant asserts that he was not under the influence of liquor, that he had his lights on his car as he came west on Cole street and before turning into Hall street, and was going at a moderate rate of speed, and sounded his horn. He testified that deceased and a companion were some 40 feet up Hall street, and stopped as he turned his car and signaled, and that deceased without any apparent reason started hurriedly in front of his car and was struck by one of his fenders and knocked down. We observe that a number of state witnesses testified to the odor of liquor upon appellant's breath; to his stupid condition; to his acts and conversation; and to the finding of liquor in his car, which seem to justify them in expressing the belief that he was intoxicated. Two witnesses testified that he was not aware of the fact that he had struck a woman, and seemed to think he had struck a man.

The court having submitted four counts in the indictment to the jury, and a general verdict having been returned, it would be our duty to refer the verdict to such counts as we deem to have support in the testimony and to be sufficient to charge offenses under the law. Without discussing the other counts which were left in the indictment after the court acted, and which were submitted to the jury, we are of opinion that those counts which charge that appellant operated his car on a public highway while in an intoxicated condition, and that he operated his car without lights at...