Punchard v. State

• Decision Date: 02 November 1932
• Docket Number: No. 15349.,15349.
• Citation: 54 S.W.2d 110
• Parties: PUNCHARD v. STATE.
• Court: Texas Court of Criminal Appeals

Page 110

54 S.W.2d 110

PUNCHARD v. STATE.

No. 15349.

Court of Criminal Appeals of Texas.

November 2, 1932.

Commissioners' Decision.

Appeal from County Court at Law, No. 2, Harris County; Ray Scruggs, Judge.

J. C. Punchard was convicted of negligent homicide of the second degree, and he appeals.

Reversed and remanded.

Abe W. Wagner, of Houston, and K. C. Haynie, of Austin, for appellant.

O'Brien Stevens, Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is negligent homicide of the second degree; the punishment, confinement in jail for one year and one day.

Omitting the formal averments, it is charged in the information that appellant "did then and there while operating and driving an automobile upon a public highway of Harris County, State of Texas, to-wit, on Dennis Avenue, a public street in the city of Houston, in said county and state, at a point near the intersection of Nettleton Street, also a public street in the city of Houston, Harris County, Texas, negligently and carelessly cause the death of Matthews Provenzano, a person who was then and there upon said highway, by causing said automobile to strike and kill the said Matthews Provenzano, the death of the said Matthews Provenzano being the proximate consequences and result of the negligence of the said J. C. Punchard, who then and there was driving the said automobile at a dangerous, excessive and unlawful rate of speed, and who was not then and there keeping and maintaining a proper lookout for the presence of persons and vehicles then and there upon said highway, and particularly the person whose death he caused, and the said J. C. Punchard was negligent because he failed to apply the brakes in time prior to striking the said Matthews Provenzano, and the said J. C. Punchard then and there failed to use that degree of care which a man of ordinary prudence would have used under like and similar circumstances, there being then and there an apparent danger of causing the death of the said Matthews Provenzano, but no intent on the part of said J. C. Punchard to cause said death."

The proof on the part of the state was to the effect that Matthews Provenzano, a child about five years of age, was near the street named in the information; that appellant drove his automobile down the street at approximately 45 miles an hour and at the time, instead of watching the road, was looking back, waving to some person; that appellant struck the child, carrying him approximately 72 feet; that appellant did not put his brakes on until he had hit the child; that the child was unconscious from the time it was hit by the automobile until its death two or three days later. Appellant's testimony was to the effect that he was driving less than 20 miles an hour; that an automobile was parked in front of the place of business of the child's father; that without warning deceased came into the road from behind the parked automobile and he had no opportunity to stop his car; that he immediately applied his brakes and carried the child only a few feet; that he was looking down the road at the time, and driving carefully. Appellant's testimony was corroborated by that of other witnesses.

In submitting the case to the jury the court defined negligent homicide of the second degree as meaning such as is committed in the prosecution of an unlawful act. Thereafter the jury were instructed as follows: "By an unlawful act is meant such an act as by the penal law is called a misdemeanor or such an act, not being a penal offense, as would give just occasion for a civil action." Further, the charge read: "You are charged, that our statutes further provide that whoever shall drive or operate a motor vehicle in this state within the limits of an incorporated city or town in excess of 20 miles per hour is guilty of a misdemeanor."

Again, we quote from the charge:

"The punishment for negligent homicide in the second degree, committed in the performance of an unlawful act attempted or executed, known as a misdemeanor, is by imprisonment in jail not exceeding three years or by fine not exceeding three thousand dollars.

"The punishment for negligent homicide in the second degree, when the act complained of is not a misdemeanor and is not a violation of the penal law but is one for which a civil action would lie, is by fine not exceeding one thousand dollars or by imprisonment in jail not exceeding one year."

In applying the law to the facts, the court, in a single paragraph, set out the allegations embraced in the information. The penalty was not mentioned in this paragraph, but after requiring the jury to believe beyond a reasonable doubt the matters set forth in said paragraph, the court said: "Then you will find the defendant guilty and assess his punishment as above provided." The punishment "above provided" was set forth in the two paragraphs of the charge hereinbefore quoted.

The verdict of the jury, which was followed in the judgment of the court, read as follows:

"We, the jury find the defendant guilty of negligent homicide in the second degree and assess his punishment at One Year and one day in Jail.

                             "J. M. Dunnington, Foreman."
                

Article 1239, Penal Code, reads as follows: "Negligent homicide of the second degree can only be committed when the person guilty thereof is in the act of committing or attempting the commission of an unlawful act."

Article 1240, Penal Code, provides: "Within the meaning of an `unlawful act' as used in this chapter are included: 1. Such acts as by the penal law are called misdemeanors; and 2. Such acts, not being penal offenses, as would give just occasion for a civil action."

Article 1242, Penal Code, reads thus: "When the unlawful act attempted or executed is known as a misdemeanor, the punishment of negligent homicide committed in the execution of such unlawful act shall be imprisonment in jail not exceeding three years, or by fine not exceeding three thousand dollars."

Article 1243, Penal Code, reads as follows: "If the act intended is one for which an action would lie, but not an offense against the penal law, the homicide resulting therefrom is a misdemeanor, and may be punished by fine not exceeding one thousand dollars, and by imprisonment in jail not exceeding one year."

The opinion is expressed that the information is not sufficient to support a conviction for negligent homicide of the second degree based on an act denounced by the penal law as a misdemeanor. Nowhere in the information is it charged that appellant operated the automobile on the designated street in the city of Houston in excess of 20 miles an hour, the pleader contenting himself with averring that appellant drove the automobile at "a dangerous, excessive and unlawful rate of speed." Under the provisions of article 1240, Penal Code, an unlawful act is...