Ladd v. State, 13084.

• Decision Date: 07 May 1930
• Docket Number: No. 13084.,13084.
• Citation: 27 S.W.2d 1098
• Parties: LADD v. STATE.
• Court: Texas Court of Criminal Appeals

27 S.W.2d 1098

LADD v. STATE.

No. 13084.

Court of Criminal Appeals of Texas.

May 7, 1930.

Appeal from Willacy County Court; R. S. Dorsett, Judge.

J. E. Ladd was convicted for negligent homicide in the second degree, and he appeals.

Reversed and remanded.

A. B. Crane, of Raymondville, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for negligent homicide in the second degree; punishment, a fine of $1,000.

The testimony for the state shows that appellant was driving his car west upon a concrete highway; that he met a one-horse buggy occupied by two witnesses who testified in the case. The man driving this buggy said that appellant was coming "very fast," and that witness turned his buggy off the concrete to keep from being killed; that just as he turned to his right appellant's car appeared to turn to its left. This witness and his wife testified that the boy who was killed was riding on a bicycle just behind their buggy. There is no suggestion from either of said witnesses that the boy in question turned to his left and from behind their buggy at the time of or just before he was struck by appellant's car. The stepfather of said boy testified that he heard the car of appellant roaring as it came west on the highway, and heard the sound as of something struck, and ran around his house and found the little boy by the side of the road. The testimony showed that the child's leg was broken and that his skull was crushed as the result of the collision. Another state witness who owned a car of the same make as that of appellant, and had had it about a year, testified that his car would begin roaring at a speed of about forty-five miles per hour. Appellant and his witnesses testified that he was driving along said highway going west and at about thirty-five miles an hour, and, as he met the buggy above referred to, he slowed down to about thirty miles per hour, and that the boy upon a bicycle came suddenly out from behind the buggy, and it was impossible for appellant to prevent the collision. Appellant bought his car new, and had it about six months.

There are six bills of exception in the record. Bills 1 and 4 complain of the refusal of the court to let witnesses, who were in the car with appellant, answer the question as to whether they could see any way by which defendant could have prevented hitting said boy with his car. We perceive no error in the action of the trial court. The question called for a speculative answer, and invaded the province of the jury.

Bill of exceptions No. 2 sets out a number of matters testified to by a witness, some of which are unquestionably admissible. If there be any question as to the admissibility of the testimony given by this witness, which is not admitted, as to the fact that the brains of the boy were knocked out and were lying on the ground, this could not be considered as brought forward in this bill by reason of the fact that the complaint is of all the testimony set out in the bill as a whole. The rule is so well settled as not to need citation of authorities that, when part of the matters complained of are admissible and others are not, a bill complaining of the whole will not avail.

There is a bill complaining of the fact that the doctor, to whom the child was carried after being struck, was permitted to testify as to the condition of the boy's body when he examined it. It is not clear to us that testimony as to the mangled and bruised condition of the boy's body was not admissible for what it was worth as tending to show the rate of speed at which appellant's car was going at the time of the collision. Manifestly such testimony could shed light upon such issue.

Bill of exceptions No. 5 complains of the testimony of Mr. Rains, who says that he met appellant about three-quarters of a mile from the scene of the accident, and that appellant was going at that time about forty-five...