Hillin v. State
| Decision Date | 22 February 1933 |
| Docket Number | No. 15524.,15524. |
| Citation | 57 S.W.2d 843 |
| Parties | HILLIN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Hill County Court; M. S. Wood, Judge.
R. P. Hillin was convicted of negligent homicide of the second degree, and he appeals.
Reversed, and prosecution dismissed.
J. A. Gooch, Frank H. Rawlings, and R. V. Nichols, all of Fort Worth, and Morrow & Clarke, of Hillsboro, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is negligent homicide of the second degree; the punishment, a fine of $100.
The indictment charges J. C. Morgan and appellant jointly with causing the death of Sterling Copeland; it being averred, in substance, that appellant and Morgan were in the performance of an unlawful act. Apparently the pleader attempted to charge that the unlawful act was a misdemeanor, as it is averred that appellant and Morgan unlawfully obstructed state highway No. 2 in Hill county. Without setting out the indictment, it is observed that it is not clear whether a violation of the provisions of article 784, P. C., or section 10 of article 827a, Vernon's Annotated Penal Code, is charged. Article 784, supra, among other things, denounces as a misdemeanor the act of willfully obstructing any public road, etc. Section 10 of article 827a, supra, declares it to be a misdemeanor for any person to park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main-traveled portion of any highway, outside of any incorporated town or city, when it is possible to park or leave such vehicle standing off of the paved or improved or main-traveled portion of such highway. Further, it is provided in said section that in no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway, unless a clear and unobstructed width of not less than 15 feet upon the main-traveled portion of said highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of 200 feet in each direction upon such highway.
We are constrained to agree with appellant's contention that the motion to quash should have prevailed. Article 414, C. C. P., requires that the offense be set forth in the indictment in plain and intelligible words. Punchard v. State (Tex. Cr. App.) 54 S.W.(2d) 110. All that is essential to constitute the offense must be explicitly charged and cannot be aided by intendment. Middleton v. State, 114 Tex. Cr. R. 263, 25 S.W.(2d) 614, and authorities cited. We are unable to reach the conclusion that a presumptively innocent man could ascertain from the indictment whether the unlawful act was the willful obstruction of a highway or the parking of automobiles in a manner denounced as a misdemeanor in article 827a, supra.
Other attacks were made on the indictment which we do not undertake to discuss. If another indictment should be returned, the elements of negligent homicide of the second degree should be explicitly charged. We quote from Van Arsdale v. State, 94 Tex. Cr. R. 169, 249 S. W. 863, 864, as follows: "The elements of negligent homicide in the second degree thus appear to be charged, i. e., a homicide by the act of appellant; that such homicide resulted from his carelessness and negligence; the apparent danger of causing death; the lack of an intent to kill; and that at the time of such homicide appellant was engaged in an unlawful act."
The state relied upon circumstantial evidence. Appellant did not testify, and introduced no witnesses. The proof on the part of the state was, in substance, as follows: Sterling Copeland, deceased, was returning home from Hillsboro somewhere between 12 and 1 o'clock on the night of May 2, 1931. While traveling north in his Ford automobile on the concrete highway between the towns of Itasca and Grandview, deceased ran his car into the rear end of a Sproules truck in such manner as that the entire front end of the car was demolished. Deceased's car became engulfed in flames, and the body of deceased was burned. It was impossible to tell whether death resulted from the collision or was caused by burning. The truck deceased struck was headed north, and was on the right-hand side of the pavement going north. After the collision, another Sproules truck was seen on the highway. This truck was headed south, and was on the right-hand side of the pavement going south. Its lights were burning. It was near deceased's car.
A witness for the state, who lived near the scene of the collision, heard the crash of the vehicles and ran to the door to see what was taking place. She saw a burning car...
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Schepps v. State, 40895
...a parent or guardian or one standing in stead of such parent or guardian. Another authority upon which he relies is Hillin v. State, 123 Tex.Cr.R. 22, 57 S.W.2d 843, which held that an indictment which merely charged an accused with 'unlawfully obstructing a public road' was not sufficient ......