Landry v. State, 25329
| Decision Date | 20 June 1951 |
| Docket Number | No. 25329,25329 |
| Citation | 156 Tex.Crim. 350,242 S.W.2d 381 |
| Parties | LANDRY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Thurman Lee Mulhollan, Fred H. Woodard, Corpus Christi, for appellant.
John Young, County Atty., Elmer H. Theis, Asst. County Atty., Corpus Christi, George P. Blackburn, State's Atty., Austin, for the State.
WOODLEY, Commissioner.
Appellant was convicted of negligent homicide in the second degree, and his punishment was assessed by the jury at a fine of $2,000.
The complaint and information alleged that the death of Ensign Lois Emfinger was caused by negligence and carelessness of appellant in driving an automobile on his left side of the highway in violation of Art. 801(A), Vernon's Ann.P.C. and there colliding with an automobile in which the deceased was a passenger.
Motion to quash the complaint and information was filed, the ground being that there was no averment to the effect that there was no intention to kill as required by Art. 1235, P.C., which article reads as follows:
'No apparent intention to kill
'To bring the offense within the definition of negligent homicide either of the first or second degree, there must be no apparent intention to kill.'
The complaint and information follow closely Form No. 539, Willson's Texas Criminal Forms, 5th Ed. and allege that in the performance of the unlawful act alleged therein, appellant by negligence and carelessness caused the death of the deceased in a collision of the automobile he was driving with the one occupied by the deceased. It was also averred that there was apparent danger of causing such death which danger would have been known to appellant if he had used ordinary care and prudence.
Such allegations sufficiently apprized appellant of the charge against him so as to enable him to plead the judgment in bar to another prosecution for the offense. It is apparent from the language used that no intent to kill on the part of appellant was claimed by the state. The trial court charged the jury as to the provisions of Art. 1235, P.C., and it would have been proper for the allegation to have been made in the complaint and information.
Such negative allegation would, however, have added nothing to the state's burden, nor would it have been helpful to appellant, therefore reversible error is not shown.
The testimony shows that a car being driven on the left side the highway at a speed of 50 or 60 miles an hour forced one approaching car to leave the highway and collided head-on with another. There were no other cars on the highway in the vicinity of the collision at that time.
Immediately after the collision, the lady whose car was forced from the highway and who heard the crash investigated and found that two people were in the car which had approached her.
Upon arrival of the ambulance, appellant was sitting under the steering wheel of the car being driven on its left side of the highway, the two wrecked cars being headon and in contact. An unidentified woman was seated beside appellant in that car.
The second car involved in the collision was not occupied when the ambulance arrived.
Three persons described as 'patients' were loaded into an ambulance at the scene of the collision, and were pronounced dead after arrival at the Naval Hospital.
Hospitalman Keegan, who accompanied the ambulance driver, testified that he administered first aid to all those involved in the accident who he described as being appellant and his companion, the three ladies who were sent to the hospital and then to the morgue, and one other person who was so seriously injured that he suffered a lapse of memory and was unable to testify further than to say that he entered a car at the bowling alley and was injured in an automobile accident on the night in question.
The witness Keegan testified that he remained at the scene after sending the three to the hospital and administered to appellant and his companion in his car and the third remaining person whom he did not identify.
The body of one of the 'patients' removed from the scene of the collision was identified at the morgue as being that of Ensign Lois Emfinger, the deceased, who, according to the dental officer who identified her body, had been bowling with him some two hours before the collision.
There is no testimony concerning the condition of the body of deceased as to injuries or wounds but in addition to describing her as a 'patient' one of the witnesses testified without objection that he saw 'the bodies of three people who had been killed in the accident.'
Appellant did not testify, nor offer testimony in his behalf. No issue was raised by the testimony as to what caused the death of the deceased and there is no suggestion in the record of any...
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Lane v. State, 28859
...subsequent passage of Art. 6701d, V.A.C.S., was overruled. See also Pettigrew v. State, Tex.Cr.App., 289 S.W.2d 935; Landry v. State, 156 Tex.Cr.R. 350, 242 S.W.2d 381; and Taylor v. State, 155 Tex.Cr.R. 253, 233 S.W.2d Appellant calls attention to the fact that the provisions of Sec. 52 we......
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Grandison v. State, 48976
...fits this case like a glove.' We disagree. We do not find the following cases cited by the State to be controlling. Landry v. State, 156 Tex.Cr.R. 350, 242 S.W.2d 381 (1951); Chapin v. State, 167 Tex.Cr.R. 390, 320 S.W.2d 341 (1958); Turner v. State, 462 S.W.2d 9 (Tex.Cr.App.1969); Riggins ......
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Chapin v. State
...inflicted the fatal injury, then a charge on circumstantial evidence is not required. [167 TEXCRIM 393] Recently, in Landry v. State, 156 Tex.Cr.R. 350, 242 S.W.2d 381, 384, we 'In a prosecution for murder or other grade of unlawful homicide, the main fact to be proved is that the accused k......
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Aguero v. State
...one logical conclusion may be drawn therefrom and that the court did not err in refusing to give the requested charges. Landry v. State, 156 Tex.Cr.R. 350, 242 S.W.2d 381. In Brock v. State, Tex.Cr.App., 285 S.W.2d 745, 746, relied upon by the appellant, the narcotics were found in a washro......