McCreary v. State, 29116

• Decision Date: 09 October 1957
• Docket Number: No. 29116,29116
• Citation: 307 S.W.2d 948,165 Tex.Crim. 436
• Parties: Jimmie McCREARY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 948

307 S.W.2d 948

165 Tex.Crim. 436

Jimmie McCREARY, Appellant, v. The STATE of Texas, Appellee.

No. 29116.

Court of Criminal Appeals of Texas.

Oct. 9, 1957.

C. C. Divine, Houston, for appellant.

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

BELCHER, Commissioner.

Appellant was convicted of murder without malice under art. 802c, Vernon's Ann.P.C.; the punishment, five years in the penitentiary

The evidence of the state shows that the appellant while intoxicated drove his automobile on a six-lane freeway, and while driving it south on the inside lane of the three lanes provided for traffic travelling north, suddenly turned his automobile from the inside lane into the middle lane and ran head-on into an automobile travelling north.

Appellant, while testifying, admitted that he was driving his automobile at the time and place in question but denied that he was intoxicated. He further testified that he was driving his car on a temporary roadway leading from the east side across to the west side of the freeway so he could travel south on it and that when he was about to enter the inside lane of the three lanes on the east side for north-bound traffic, an Oldsmobile driven at a high rate of speed came from the south in the inside lane and forced him to suddenly turn his car to his left (south) into the center lane to avoid being struck and after turning he travelled only a few feet before his car collided with a car travelling north in the center lane.

In his brief, appellant contends that the indictment does not charge an offense because it fails to allege that the death of the deceased was caused by appellant's impaired driving due to intoxication.

The indictment alleges that the appellant was intoxicated while driving an automobile on a public highway at the time in question and that he did while so driving his automobile through mistake and accident kill the deceased by causing it to collide with the automobile occupied by the deceased. The instant indictment substantially conforms to the allegations charging said offense as set out in Willson's Criminal Forms, Sixth Ed., Sec. 1667. It sufficiently charges an offense under Article 802c, Vernon's Ann.P.C. Houston v. State, 143 Tex.Cr.R. 460, 158 S.W.2d 1005; Baggett v. State, 154 Tex.Cr.R. 618, 229 S.W.2d 801.

It is insisted that the place where the collision occurred was not a public street because it had not been so designated by city ordinance and that it was not a public road or highway in that it was then under construction and had not been completed, and opened to the public. Therefore, the driving and operation of motor vehicles thereon while intoxicated was not prohibited under art. 802, Vernon's Ann.P.C.

The record shows that the collision occurred within the limits of the city of Houston.

It is not essential that the proof show a designation of the street by the city because there may be other evidence...