Lane v. State, 28859

• Decision Date: 17 April 1957
• Docket Number: No. 28859,28859
• Parties: Charles R. LANE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 595

305 S.W.2d 595

165 Tex.Crim. 222

Charles R. LANE, Appellant, v. The STATE of Texas, Appellee.

No. 28859.

Court of Criminal Appeals of Texas.

April 17, 1957.

On Motion for Rehearing June 29, 1957.

Allie L. Peyton, Houston, for appellant.

Dan Walton, Dist. Atty., Thomas D White, Asst. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is negligent homicide of the second degree; the punishment, 3 years in jail.

The complaint and information were in two counts, the first alleging that appellant was engaged in the unlawful act of driving an automobile on the left hand side of a public highway when said left hand side of said highway was not clear and unobstructed for a distance of fifty yards ahead.

The second count alleged that the automobile was being driven at an unlawful speed.

Both counts were submitted to the jury with instructions that if the jury found the defendant guilty they would state on which count they found him guilty and that he could not be found guilty on both counts.

The verdict of the jury which was received and entered upon the minutes of the trial court, and upon which the judgment was rendered, reads as follows:

'We the jury find the defendant Charles R. Lane Guilty of Negligent Homicide in the Second Degree as charged of Driving and operating his automobile upon his left hand side of said road of said Public Highway and assess the Maximum Penalty of Three years in jail.

'Caton Rains--Foreman of Jury.'

The verdict considered in connection with the court's charge is deemed sufficient as a verdict finding appellant guilty under the first count of the information, that being the only count wherein driving on the left side of the highway was alleged.

The sufficiency of the allegations of the second count need not be considered, the conviction being upon the first count.

Appellant and his passenger denied that appellant drove his car to the left of the center line of the highway, or that the collision occurred on his left hand side of the roadway. But there is an abundance of testimony supporting the State's theory that appellant was driving a new model two-tone red and white Oldsmobile, without license plates; that said Oldsmobile was being driven at a speed of some 80 miles per hour just prior to the collision; that a collision occurred between the Oldsmobile and a Chevrolet automobile traveling in the opposite direction on the highway, the point of impact being on appellant's left side of the center line of the roadway, which was in the Chevrolet's proper lane; that the collision was head-on and the Chevrolet was knocked some 98 feet from the point of impact in the opposite direction from which it was traveling and three of its four occupants were killed.

There is no evidence to show that appellant had overtaken and passed, or was overtaking and passing another vehicle proceeding in the same direction at the time of the collision.

The jury resolved the fact issues against appellant and the evidence sustains the jury's finding that appellant was driving on his left hand side of the highway and that his negligence in doing so resulted in the collision and the death of the three persons named in the information.

The information is attacked upon the theory that Art. 801(A), Vernon's Ann.P.C. was repealed by Art. 6701d, Sec. 52, Vernon's Ann.Civ.St. In the alternative, it is contended that if not repealed, it is no longer an offense per se to drive an automobile on the left hand side of a highway when said left hand side is not clear and unobstructed for a distance of 50 yards ahead, it being essential that it be alleged and proved that none of the exceptions mentioned in Sec. 52 of Art. 6701d existed which permit driving on the left hand side of the highway.

Art. 6701d, Sec. 52, V.A.C.S., reads as follows:

'Upon all roadways the driver of a vehicle shall drive upon the right half of the roadway, except as follows:

'1. When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;

'2. When the right half of a roadway is closed to traffic while under construction or repair;

'3. Upon a roadway divided into three (3) marked lanes for traffic under the rules applicable thereon; or

'4. Upon a roadway designated and signposted for one-way traffic.'

In Garrett v. State, 161 Tex.Cr.R. 556, 279 S.W.2d 366, a conviction under a complaint and information alleging the unlawful act of driving on the left hand side of the highway when the same was not clear and unobstructed for a distance of at least 50 yards was affirmed, and the contention that Art. 801(A), P.C., was repealed by the 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 853.

Appellant calls attention to the fact that the provisions of Sec. 52 were not mentioned in the opinion in the Garrett case, and it was not there contended that Sec. 52 was in irreconcilable conflict with Art. 801(A), P.C.

Sec. 52 permits driving on the left side under certain conditions, but we think cannot be construed as making it lawful to drive on the left hand side when that side is obstructed and not clear.

Sec. 57 of Art. 6701d, V.A.C.S., provides 'Further limitations on driving to left of center of roadway', the first of which, the no passing zone, was referred to in the Garrett case.

The remaining limitations in Sec. 57 on driving to the left of the center of the roadway are not necessarily related to overtaking or passing but prohibit driving to the left side of the roadway:

'2. When approaching within one hundred (100) feet of or traversing any intersection or railroad grade crossing;

'3. When approaching within one hundred (100) feet of any bridge, viaduct, or tunnel.'

The same is true of the limitation found in Art. 801(A), P.C., which prohibits driving on the left hand side of the roadway when same is not clear and unobstructed for a distance of 50 yards.

Prior to the enactment of Art. 6701d, V.A.C.S., this Court, in construing Article 801(A), P.C., held that it was not necessary to allege facts showing that it was practicable to drive on the right side of the road for 'it is never permissible to drive on the left hand side of the road when there is an obstruction on the left hand side within fifty yards * * * .' Casares v. State, 144 Tex.Cr.R. 465, 164 S.W.2d 700, 701.

For like reason, it is not necessary for the State to allege and prove that the exceptions mentioned in Sec. 52 of Art. 6701d, V.A.C.S., did or did not exist.

We remain convinced that the enactment of Art. 6701d, V.A.C.S., did not repeal that portion of Art. 801(A), P.C., which makes it unlawful to drive on the left hand side of the highway when the same is not clear and unobstructed for at least 50 yards ahead.

The judgment is affirmed.

On Motion for Rehearing

MORRISON, Presiding Judge.

On rehearing, our attention is directed to the seemingly irreconcilable conflict between our holdings in Garrett v. State, 161 Tex.Cr.R. 556, 279 S.W.2d 366, and Martinez v. State, Tex.Cr.App., 288 S.W.2d 787, 788.

In the Garrett case, we held that Article 801(A), Vernon's Ann.P.C., was not repealed by the enactment of Sections 54(a), 56, and 57 of Article 6701d, Vernon's Ann.Civ.St. and that 801(A), supra, continued to denounce the offense of driving on the left hand side of the highway when the same was not clear and unobstructed for 50 yards ahead.

In the Martinez case, we set forth the charging part of the information drawn under Section 52 of Article 6701d and said, 'That statute requires that motor vehicles be driven on the right half of the roadway in all cases and in all instances and under all conditions except those named in the statute.'

If, then, it is unlawful to drive on the left hand side of the roadway except when the statute says that such may be done, such statute covers completely the law on the subject of left hand driving, and we should re-examine our thinking on the question of the repeal of Article 801(A), supra, by the passage of Article 6701d, supra.

The crux of our decision in the Garrett case was that a holding that Article 801(A) had been repealed would make it lawful to drive on the left hand side of the roadway except when driving in a no passing zone and in those cases covered by the provisions of Sections 54(a) or 56. In reaching such a decision, we necessarily overlooked Section 52 because in Martinez we stated that it was never lawful to drive on the left hand side except in those cases authorized by Article 6701d.

In our original opinion herein, we said, 'Sec. 52 permits driving on the left side under certain conditions, but we think cannot be construed as making it lawful to drive on the left hand side when that side is obstructed and not clear.' What we should have said was that it is never lawful to drive on the left hand side except when permitted by Article 6701d.

With these observations, we return to the question of repeal of Article 801(A). The majority has now concluded that in deciding the Garrett case we passed over too lightly the reasoning of our esteemed and late lamented Associate Justice Smedley in Dallas Railway & Terminal Co. v. Black, 152 Tex. 343, 257 S.W.2d 416, 420, wherein he said, in part, 'The Act of 1947, entitled 'Uniform Act Regulating Traffic on Highways', is a comprehensive statute which * * * repeals all laws or parts of laws inconsistent or conflicting with the provisions of the Act.' Certainly, Article 801(A) is inconsistent with Article 6701d because the latter legislates on the entire field stated in its title, includes the offense covered by the former statute and provides a different penalty therefor.

Stated in another way, it is unlawful under Article 6701d to drive on the left hand side of the...