Parroccini v. State

• Decision Date: 30 March 1921
• Docket Number: (No. 6180.)
• Citation: 234 S.W. 671
• Parties: PARROCCINI v. STATE.
• Court: Texas Court of Criminal Appeals

234 S.W. 671

PARROCCINI v. STATE.

(No. 6180.)

Court of Criminal Appeals of Texas.

March 30, 1921.

Rehearing Denied. November 23, 1921.

Appeal from Clay County Court; E. W. Coleman, Judge.

Lido Parroccini was convicted of negligent homicide, and he appeals. Affirmed.

Alcorn & Jameson, of Montague, and Frank Holaday and Wantland & Dickey, all of Henrietta, for appellant.

Vincent Stine, Co. Atty., of Henrietta, and R. H. Hamilton, Asst. Atty. Gen., for the State.

HAWKINS, J.

The appellant was convicted of negligent homicide, and his punishment assessed at a fine of $1,000.

On March 30, 1920, the appellant and Riley and Dave Milton left the city of Montague on their way to the oil fields in a high-powered Marmon car which belonged to Dave Milton. Dave Milton drove the car to Henrietta and a few miles beyond, at which time the appellant commenced to operate it, and a short time thereafter the car was wrecked, being turned over and killing Riley Milton, and rendering Dave Milton unconscious for a time. The evidence showed that the car was running at a very high rate of speed, and this is not denied by the appellant himself. He admits that he was ascending a hill and feeding the car gasoline, and had attained a speed of some 15, 20, or 25 miles per hour, and that as they passed the top of the hill he lost control of the car, and claims that the foot accelerator hung; that he was unfamiliar with the car, having been used to driving a Ford, and that the car continued to increase in speed up until the time of the accident. The state controverted appellant's contention that the speed of the car was not caused by him purposely, and showed by a number of witnesses that quite a number of bottles were found at the place of the accident, some full of wine, some empty, and some of them broken. The appellant was seen by one witness to be throwing something out in the field immediately after the accident, and bottles of wine were found in the field. It is not necessary to make a further statement of the evidence, as it will appear to some extent in the discussion of the case on other branches.

As one of the grounds of appellant's motion for new trial, he urges that the court erred in overruling his motion to quash the information. The record contains a motion to quash, but is entirely silent as to whether the attention of the court was ever called to it, and fails to show that the court took any action whatever on it; no bill of exceptions was reserved to such action as the court may have taken, if any. Hence we cannot consider the matter further than to ascertain whether the information charges an offense. It contained two counts; conviction was under the first, and we will disregard the second. The first count alleges that appellant was engaged in the performance of an unlawful act, in that he was operating and driving an automobile on the public highway, (1) negligently, carelessly, and imprudently, not in a careful and prudent manner, and at a rate of speed greater than was reasonable and proper, having regard to the traffic and use of the highway; and (2) did unlawfully operate and pass a motor vehicle (to wit, an automobile being then and there driven by Mrs. W. S. Nash) on a public highway at such a rate of speed as to endanger the life and limb of the said Mrs. Nash and of the deceased, Riley Milton; and (3) did drive at a rate of speed in excess of 25 miles per hour; and that appellant, in the performance of the unlawful acts aforesaid, caused the death of Riley Milton, who was in the car with him; and that appellant drove the said automobile so negligently, carelessly, imprudently, and recklessly, and unlawfully that it fell on Riley Milton and killed him.

This court has had occasion recently to construe certain provisions of what is known as the State Highway Law (Laws 1917, c. 207, as amended by Laws 1st Called Sess. 1917, c. 31), and has held some of them unenforceable criminally for uncertainty (Griffin v. State, 86 Tex. Cr. R. 498, 218 S. W. 494), and in case P. R. Russell v. State, 228 S. W. 566, decided February 23, 1921 (not yet [officially] reported), we held a part of section A, article 820k, Vernon's Ann. Civ. St. Supp. 1918, unenforceable. On the authority of those cases a part of article 820o (under which it is sought to bring appellant within the commission of an unlawful act) might be vigorously assailed, namely, subdivisions 1 and 2 of the first count; but we find no uncertainty in the third subdivision. Article 820o, after enumerating the things mentioned above, reads:

"Provided, that it shall be unlawful to drive at a rate of speed in excess of twenty-five miles per hour."

The first count in the information so charging, and the verdict convicting him under that count, it will be applied to that portion of the count which properly charges an unlawful act, on the same principle that a general verdict of guilty responds sufficiently to an indictment which contains two counts, even if one of the counts be bad, inasmuch as the verdict will be applied to the good count. Boren v. State, 23 Tex. App. 28, 4 S. W. 463; Pitner v. State, 37 Tex. Cr. R. 268, 39 S. W. 662; Southern v. State, 34 Tex. Cr. R. 144, 29 S. W. 780, 53 Am. St. Rep. 702; Ferrell v. State, 68 Tex. Cr. R. 487, 152 S. W. 901; Noodleman v. State, 74 Tex. Cr. R. 611, 170 S. W. 710.

Appellant complains because the trial court permitted witnesses to testify about finding wine bottles about the car after the accident, and smelling liquor on appellant's breath; some of the bottles were full of wine, some empty, and some broken. Bills were reserved to this testimony from only two witnesses; the statement of facts disclose that some witnesses testify to the same facts without objection. If there had been error in admitting it from the two witnesses, and others swore to the same facts, no objection being made, the error would be waived. However, we think there was no error. Appellant's contention was that the speed of the car was caused by the foot accelerator becoming stuck; the state's that it was the reckless act of appellant. One witness testified to seeing appellant throwing something out in the field after the car overturned; bottles of wine were found in the field. Appellant says he did not know the wine was in the car until after the accident, and that Riley Milton, before he died, told appellant to get rid of that "stuff." Other witnesses say appellant claimed the wine, saying it was for his church. All this testimony was properly admitted. This court is sufficiently informed on the construction and operation of automobiles to know, that a mixture of gasoline through the carburetor, and alcohol in the operator, is a dangerous combination, likely to eventuate in disaster.

During the examination of a witness special prosecutor asked:

"After you arrived out there that day (speaking of the date and place of the accident), and during the conversation, who was it said out there the whole bunch was drunk, and ought to be prosecuted?"

The question was objected to, and not answered. It was improper. Attorneys employed to prosecute are bound by the same rules the regular prosecuting officers must observe, and should not permit zeal for their clients to lead them into error. By whomsoever they may be employed, they still are representing the state. The court instructed the jury not to consider the question, and, it being unanswered, we will not hold it such error as will cause a reversal.

During the argument counsel for the state said to the jury, "I believe this defendant is guilty," and also, "I do not believe that this defendant should be permitted to hide behind his priestly robes, but should be convicted like any other criminal." Objection was made, and bills reserved. To the bill presenting the last matter the court adds that "to his best recollection the jury was instructed not to consider the above remarks."

No special charge was asked directing the jury not to consider these arguments, and hence it cannot be considered. As our comment on the first matter above complained of, we quote section 365, p. 206, Branch's Anno. Penal Code, and authorities cited, as follows:

"It is improper for counsel in argument to express their personal opinion as to the guilt or innocence of defendant. Such conduct has in some notable instances led to unpleasant strictures on the character of celebrated counsel. If state's counsel unfairly informs the jury that in his opinion the defendant is guilty, the court should instruct the jury to disregard such unfair statement, but where a special instruction on the subject has not been refused, such conduct will not cause a reversal. Pierson v. State, 18 Tex. App. 563; Young v. State, 19 Tex. App. 543; Kennedy v. State, 19 Tex. App. 634; Habel v. State, 28 Tex. App. 600, 13 S. W. 1001; Thomas v. State, 33 Tex. Cr. R. 607, 28 S. W. 534; Spangler v. State, 42 Tex. Cr. R. 248, 61 S. W. 314; Hawkins v. State, 71 S. W. 756; Ball v. State, 78 S. W. 508; Hinton v. State, 144 S. W. 619."

In his bills of exceptions Nos. 1 and 3 appellant complains of the trial court permitting ____ Herron and Mrs. Nash to testify as to the speed of the car appellant was driving, because not sufficiently qualified to speak on that subject. Herron testified that he had ridden in automobiles; could tell whether they were going fast or extraordinarily slow, and could tell whether it was running more than 25 miles per hour. Mrs. Nash had seen many cars operated, and had been driving one herself for six years, and said she could tell with fair accuracy the rate of speed they were moving. The subject of "speed" of moving objects does not appear to be one for experts. In the Encyclopedia of Evidence, vol. 5, under the subhead, "Opinions and Conclusions of Non-experts Classified," p. 708, we find this general rule:

"A witness who has been accustomed to observe the running of railroad trains may testify as to the rate of speed at...