Inness v. State

• Decision Date: 15 December 1926
• Docket Number: (No. 10351.)
• Citation: 293 S.W. 821
• Parties: INNESS v. STATE.
• Court: Texas Court of Criminal Appeals

293 S.W. 821

INNESS v. STATE.

(No. 10351.)

Court of Criminal Appeals of Texas.

December 15, 1926.

Rehearing Denied April 27, 1927.

Commissioners' Decision.

Appeal from District Court, Shelby County; R. T. Brown, Judge.

Roy Inness was convicted of driving an automobile on a public street while intoxicated, and he appeals. Affirmed.

Sanders & Sanders, of Center, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

BETHEA, J.

The appellant was convicted in the district court of Shelby county of unlawfully driving an automobile upon a public street while under the influence of intoxicating liquor, and his punishment assessed at a fine of $350.

The record in this case discloses that the appellant drove an automobile from the direction of Shelbyville street in the town of Center to a point in front of the courthouse, and there stopped his car. He stopped his car on the public square across the street just opposite the courthouse on the East side of the square. At the time he was driving said car he was drunk.

The charging part of the indictment in this case reads as follows:

"Did then and there unlawfully while under the influence of intoxicating liquors drive and operate an automobile upon a public street within the limits of an incorporated town, to wit, the public square, within the limits of the incorporated town of Center, Shelby county, Tex., against the peace and dignity of the state."

Appellant's first bill of exceptions complains that the trial court erred in not quashing the above indictment. The term public square is usually applied to land on which a courthouse is erected. In this state there are few county sites in which there is not set apart a certain block, part, or parcel of land designated as the "public square," and they are generally intended as sites for the erection of courthouses. That part of a public square used by the public to move about on, either on foot or in automobiles, buggies, wagons, and other vehicles, constitutes, and is, a public highway. Bouvier defines a "street" as "a public thoroughfare or highway in a city or village." It follows, therefore, that a public street or public square are one and the same, being used interchangeably and synonymously. We therefore hold that the learned trial judge was correct in overruling appellant's motion to quash said indictment.

Appellant's bill of exceptions No. 3 is nothing more nor less than a repetition of his objections and exceptions to the court's main charge. We have carefully reviewed said charge, and find the same a correct enunciation of the principles of law involved in this case as well as a full and complete submission of all the issues raised by the facts.

There being no errors in the record, and the facts being amply sufficient to support the verdict, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

A deputy sheriff testified that he saw the appellant driving his automobile upon the street. Quoting the witness, he said:

"I went out to his car. Roy was driving it, and at that time he was drunk."

On cross-examination he said:

"I did not know what he was drinking. I judge he was drunk from his appearance * * * and his breath. He had no whisky there, but had some empty bottles."

On redirect examination he said:

"I could tell the contents of the bottles from the smell. It smelled like `jake.' These were soda water bottles, and had had `jake' or Jamaica ginger in them. When he drove up there and stopped his car, he fell over on the steering wheel, and I could see that he was drunk. At that time I smelled his breath. From my experience as an officer, I would say he had been drinking `shinney.'"

Another witness, Wilson, testified that he saw the appellant, and said that he was drunk. He said:

"Of my own knowledge, I could not say he was actually `dog drunk,' but he was drunk; but I could tell he had been drinking pretty heavily. I could smell his breath, and tell he was drinking; but I don't reckon I could tell...