Long v. State, 24136.
| Decision Date | 27 October 1948 |
| Docket Number | No. 24136.,24136. |
| Citation | 214 S.W.2d 303 |
| Parties | LONG v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Swisher County; C. D. Russell, Judge.
Harold Long was convicted of murder without malice, and he appeals.
Reversed and remanded.
E. T. Miller, and Simpson, Clayton & Fullingim, all of Amarillo, for appellant.
Ernest S. Goens, State's Atty., of Austin, for the State.
Appellant was given a sentence of five years in the penitentiary upon a conviction for murder without malice. The prosecution is under Article 802c of Vernon's Ann. P.C.
It is charged, by Count Three of the Indictment, that appellant did, on or about the 18th day of January, 1947, while intoxicated and while under the influence of intoxicating liquor, drive and operate an automobile on a certain public highway in Swisher County, and that while doing so he did, through mistake and accident kill Mrs. Mattie Rogers by driving said automobile into and causing it to collide with the automobile occupied by Mrs Rogers.
The State's evidence in the case overwhelmingly supports the charge in all of its phases. The defendant, however, testified in his own behalf and denied being intoxicated. He said that while driving his car in a southerly direction, in a snow, his windshield wiper quit working and he turned and started back north to Tulia to get it fixed; that, as he did so, something happened to his car, he heard a popping noise, after that he could not control the steering of his car. He said his car ran across the road just as he met the Rogers car; that he collided with them while he had no control of his car. If the jury believed his statement it would be a defense to the charge against him, and they should have found him not guilty. His evidence is contradicted by a number of witnesses who testified in the case, particularly by Mr. Rogers who survived the accident.
In submitting the case to the jury the court defined murder and then, applying the law to the facts of the case, said: "Now, if you find and believe from the evidence beyond a reasonable doubt that the defendant was intoxicated or under the influence of intoxicating liquor at the time he drove his automobile into collision with the automobile occupied by Mrs. Mattie Rogers, as charged in the indictment, you will find him guilty and assess his punishment at confinement in the penitentiary for a term not exceeding five years and not less than two, but if you have a reasonable doubt as to whether he was intoxicated or under the influence of intoxicating liquor, you will find him not guilty." (Emphasis added.)
A special exception was lodged at that part of the charge which assumed that the accused "* * * drove his automobile into collision with the automobile occupied by Mrs. Mattie Rogers, as charged in the indictment, * * *." In the following section the court told the jury if they found from the evidence that immediately prior to the collision the defendant's car slipped off of the highway and that he attempted to right it and the steering apparatus gave way and prevented him from turning his car to avoid the collision, they would find him not guilty. It is noted that the...
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