Moore v. State

• Decision Date: 27 February 1935
• Docket Number: No. 17167.,17167.
• Citation: 81 S.W.2d 1015
• Parties: MOORE v. STATE.
• Court: Texas Court of Criminal Appeals

81 S.W.2d 1015

MOORE v. STATE.

No. 17167.

Court of Criminal Appeals of Texas.

February 27, 1935.

Rehearing Denied April 17, 1935.

Leave to File Second Motion for Rehearing Denied May 1, 1935.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Joe V. Moore was convicted of murder, and he appeals.

Affirmed.

R. A. Wilson, of Amarillo, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

The offense is murder; penalty assessed at confinement in the penitentiary for five years.

It is charged in the first count of the indictment in substance that the appellant, while intoxicated, drove an automobile upon a public street, naming it, in the city of Amarillo, an incorporated city.

The offense is defined in article 802, P. C. 1925. Under article 1149, P. C., a homicide committed in violation of article 802, supra, may be penalized under the law of murder. The matter is discussed in detail in the case of Jones v. State (Tex. Cr. App.) 75 S.W.(2d) 683 (see motion for rehearing on page 687).

From the state's evidence, it appears that about noon on the 24th of March, 1934, three children, including Shirley Pauline Palmateer, were sitting on the curb in front of their home on South Arthur street in the city of Amarillo. Appellant and his companion, Mrs. Daniels, were in an automobile which the appellant was driving on the street mentioned. While going in the proper direction on the side of the street opposite from which the children were sitting, the car suddenly swerved across on the wrong side of the street. In so doing it straddled the curb and went partly upon the curb and sidewalk where the children were sitting and ran over them, each receiving injuries, from which injuries Shirley Pauline Palmateer died.

The controverted matter is whether appellant was driving the car while under the influence of intoxicating liquor, as contended by the state, or whether the accident was due to the fact that the appellant was rendered incapable of controlling the car due to the use and effect of medicine prescribed and taken at the direction of a physician. Appellant claimed and testified that he was under the influence of a drug known as dial ciba. Some ten or twelve witnesses testified that they were present and saw the appellant and his companion, Mrs. Daniels, immediately after the tragedy, and that the breath of each of them bore strong evidence of the recent use of intoxicating liquor. Several officers who saw the appellant shortly after the homicide and who arrested him gave the opinion that he was drunk, based on his conduct and appearance and to the odor of whisky upon his breath.

It was shown that there was no defect in the car in which appellant and his companion were riding. It was proved that the child was killed by the accident.

Appellant introduced Dr. Langston, a physician, who, according to his testimony, was requested by Miss Slayton, the secretary of the appellant, to visit the latter at the Palo Duro Hotel in Amarillo. According to the doctor, he found that "Joe Moore was awfully sick." After an examination, he gave appellant some medicine called "dial ciba." It was administered by hypodermic injection into the vein. The doctor said that dial ciba was a synthetic narcotic or a synthetic morphine. It is used as a sedative. Appellant seemed to be in pain, and the medicine was given to relieve him. The medicine was in the form of tablets containing a grain and a half. The doctor said there was nothing wrong in giving the medicine, but he thought that appellant took an overdose of it. From the doctor's testimony we quote: "As to the effect of `dial ciba' on a man, he is more or less numb to all of his pain. He can't articulate. His eyes would be slightly dilated, as if he had had a narcotic, and he can't walk straight, just as if he was drunk. It affects the nerve centers in the brain, as well as the circulation."

The doctor testified that he did not smell anything indicating that appellant was drunk, but he was in intense pain. He said that the conduct of one under the influence of dial ciba was similar to being under the influence of intoxicating liquor. From his testimony we quote as follows: "There are many traits in common. * * * It takes a doctor to tell the difference. There is one symptom or sign that you can always wake a `drunk' up with, and that is pressure on the supra-orbital nerves. That nerve is just over the eye. Their eyes will flutter, but with drugs they won't do that."

The doctor further testified that it was his experience that a man who was drunk on intoxicating liquor would become sober quickly upon getting a great shock; that a shock would not arouse one under the influence of dial ciba.

Dr. Dutton, a witness for the appellant, testified that he was acquainted with a narcotic called "dial ciba" and its effect upon a human being. He gave testimony in behalf of the appellant in response to hypothetical questions touching the effect upon an individual under certain circumstances when there had been administered the drug called "dial ciba." The doctor's testimony upon direct examination is in substance that the effect of the drug would depend upon the condition of the system of the individual and the amount of drug administered. The doctor stated that the actions of a man under the effect of the drug would be very similar to those of a man under the influence of intoxicating liquor. From the testimony we quote: "A layman would have much difficulty in distinguishing whether or not a man was drunk or under the influence of the drug. I would not say that a dose like that would affect a man to a considerable degree from six to twenty-four hours."

The witness also stated that dial ciba was much used by the medical profession. He expressed the opinion that one who was drunk would sober up from a shock, whereas the contrary would be the effect of one under the influence of the drug.

Touching the effect upon the system of the drug known as dial ciba, the testimony of Dr. Royce, Dr. Mann, and Dr. Hendricks was similar to that given by Dr. Langston and Dr. Dutton to which reference has been made above.

The testimony of the witness Ruple is in substance as follows: He was acquainted with the appellant, and had business with him; that on the morning of the day on which the accident took place, the witness visited the appellant. He first went to his office, and, finding that appellant was at the hotel, the witness went there. The witness gave testimony to the effect that a doctor came to the appellant's office about ten minutes after the arrival of the witness. Appellant seemed to be in misery. The doctor gave appellant a hypodermic injection in his arm. The witness testified that he sought appellant for the purpose of talking business with him, but, due to his suffering, he refrained from any discussion with appellant. The witness testified that he was familiar with the appearance and conduct of people who were drunk; that upon the occasion mentioned the appellant was sober. After giving the hypodermic injection, the doctor left some tablets and told appellant to take them every thirty minutes or thereabouts. The doctor left shortly before the witness departed from the room in which appellant was staying. The witness stated that appellant seemed to be in misery and was suffering from his stomach as though he had indigestion. Appellant bore the appearance of a man who was suffering. The witness had never seen appellant under the influence of intoxicating liquor, although he had seen him take a drink of liquor. He regarded appellant entirely sober on the occasion mentioned. He saw nothing which indicated the contrary.

Appellant testified in substance as follows: He was 31 years of age. He had been a resident of Amarillo for 7 years. He was self-educated and was a practicing lawyer. His family consisted of his wife and a daughter 3 years of age. On Sunday before the accident he had been to visit his wife, who stayed at Canyon, where she was attending college. He returned to Amarillo that day, and was engaged in work incident to his profession. He disclaimed drinking any intoxicating liquor within a period of 10 days preceding the accident, with the exception of one glass of beer some 4 or 5 days before the tragedy occurred. Mrs. Bert Daniels was a client of the appellant. Her husband had died, and appellant had been consulted and had given advice in a professional way with reference to the estate. He described his movements from his return to the city of Amarillo and up to the time of the tragedy. During his wife's absence, appellant lived at the Palo Duro Hotel. He had a business appointment with Mrs. Daniels. She came in a car, and he accompanied her to the home of a negro woman who had been washing clothes for each of them. The laundry was carried in the car. Appellant described his condition in detail at the time he called in the physician, Dr. Langston, who was a client of the appellant. Appellant had not previously had occasion to call on a doctor. He was suffering when the doctor came and administered a hypodermic injection, the nature of which appellant did not know. The doctor left some tablets which looked something like aspirin tablets in appearance. After the doctor left, appellant took two of the tablets within a short time. He described his trip to the laundry. He testified that on his return from the laundry in Mrs. Daniels' car (she doing the driving) he became practically unconscious and was unable to recall any of the incidents attending the tragedy. Appellant said the name of his stenographer was Miss Gertrude Slayton.

On cross-examination appellant stated as a reason for his suffering at the time the doctor was called the fact that he had used some indiscretion in eating Mexican food. He had not previously taken medicine of the kind that was administered to him by Dr. Langston, and was not familiar with...