Moseley v. State, 26385
| Decision Date | 03 June 1953 |
| Docket Number | No. 26385,26385 |
| Citation | 158 Tex.Crim. 578,258 S.W.2d 331 |
| Parties | MOSELEY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Mae M. Ament and J. Lawton Stone, Alpine, for appellant.
Wesley Dice, State's Atty., of Austin, for the State.
The offense is driving while intoxicated; the punishment, a fine of $50.
Officer Webber testified that he saw the appellant stagger up to his pickup, get in and drive away before he could reach him. He stated that he gave chase in his automobile, soon brought the appellant to a halt and arrested him. The officer testified that appellant's breath smelled of intoxicants, that he staggered and that, in his opinion, appellant was intoxicated. The witness Heiman corroborated the testimony of Officer Webber.
The appellant, testifying in his own behalf, admitted driving the pickup, but denied that he had had anything to drink since 9 o'clock that night and denied that he was drunk when he was arrested at 11:30 p. m. In this, he was in some measure supported by his witnesses.
The jury resolved the disputed issue against the appellant, and we find the evidence sufficient to support the conviction.
At the conclusion of the evidence, the appellant moved the court for an instructed verdict on the ground that the State had failed to prove the type of motor vehicle alleged in the complaint and information.
A careful prosecutor would certainly have taken stock of his case, asked the court to permit him to reopen, and completed his proof. This was not done. We must now search the record to see if the State proved the allegation that appellant was driving a 'pickup truck.' We find the following questions and answers:
* * *
Recently, in Nichols v. State, Tex.Cr.App., 242 S.W.2d 396, 397, we said:
'In the light of the foregoing definitions and decisions, it is the holding of this Court that the term 'automobile' as used by the Legislature in defining the offense of driving while intoxicated is a generic term which includes the motor vehicle commonly known as a 'truck."
We find no error in the action of the court in refusing to grant an instructed verdict.
Appellant next complains that the State was permitted to prove the incorporation of the City of Alpine by oral testimony of the City Clerk of said city. The complained of testimony was that...
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...to. 5 Tex. Jur.2d, Sec. 446, p. 704, and cases there cited. Freeman v. State, 172 Tex.Cr.R. 389, 357 S.W.2d 757; Moseley v. State, 158 Tex.Cr.R. 578, 258 S.W.2d 331. Further, evidence of flight is always Ground of error #2 is overruled. The judgment is affirmed. ...
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