Russell v. State

• Decision Date: 10 March 1920
• Docket Number: (No. 5702.)
• Citation: 228 S.W. 566
• Parties: RUSSELL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 566

228 S.W. 566

RUSSELL v. STATE.

(No. 5702.)

Court of Criminal Appeals of Texas.

March 10, 1920.

Rehearing Granted February 23, 1921.

Appeal from Johnson County Court; O. O. Chrisman, Judge.

P. R. Russell was convicted of careless driving, and appeals. Reversed and remanded.

F. E. Johnson, of Cleburne, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The prosecution is under article 820k, Vernon's Texas Criminal Statutes, Supplement 1918, being section 16 of the Act of April 9, 1917, c. 207. The penalty attached to this statute is in the Act of May 19, 1917, First Called Session, c. 31, § 45, and of the Act of October 10, 1917, Third Called Session, c. 13, § 45, (Vernon's Ann. Pen. Code Supp. 1918, art. 820yy); the penalty prescribed being for the first offense not exceeding $100. Subdivision (f) of article 820k is as follows:

"It shall be the duty of the person operating or in charge of an overtaking vehicle to sound audible and suitable signal before passing a vehicle proceeding in the same direction."

In the count in the information under this phase of the statute the following is charged:

"* * * Did then and there while driving a motor vehicle upon a public highway in said state and county attempt to pass another vehicle by overtaking said vehicle without then and there sounding audible and suitable signal before passing said vehicle going in the same direction."

We do not think the information is subject to the criticism addressed to it, that it charges no offense, in that the statute does not denounce an attempt to pass a vehicle. The apparent purpose of the statute is to prevent accidents or injuries by requiring that the person in charge of an approaching vehicle shall give warning before passing one which he is overtaking. The facts in the instant case show that the appellant, while in the act of passing a vehicle which he overtook, caused his car to strike the vehicle and injure both it and some of its occupants. It occurs to us that the statute made it his duty to sound a warning before he was in a position to collide with the vehicle he was passing, and that the fact that the passing was prevented by the collision would not take the act out of the terms of the statute. The pleading might well have been made more specific by an allegation identifying the vehicle unlawfully passed. The omission, however, we think would not have been available, except upon special exception.

The appellant, it seems, at the time of the collision, was driving his car at nighttime without lights. The absence of lights is explained by the fact that the lights were defective, and went out a number of times upon the trip which the appellant was making. The fact that he chose to drive his car at night, when it was in a condition that the lights would not burn, would not, as a matter of law, excuse him for the failure to give the signal required by the statute.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant was convicted in the county court of Johnson county for an alleged violation of what is generally known as the State Highway Law, passed by the Thirty-Fifth Legislature at its regular session (Laws 1917, c. 207), and amended at its called session (Laws 1917 [1st Called Sess.] c. 31). In an opinion from this court, handed down March 10, 1920, the judgment of the lower court was affirmed. Appellant in due time filed a motion for rehearing, together with an argument on the motion, which, while presenting no authorities for the consideration of the court has caused us to have grave doubt as to the correctness of the original opinion.

It was charged against appellant by complaint and information in two counts that he (1) "did then and there drive and operate a motor vehicle upon the highway in this state in a careless manner, and the said P. R. Russell did not then and there show due regard for the safety and convenience of other vehicles and traffic upon said public highway," and (2) that he "did then and there and while driving a motor vehicle upon a public highway in said state and county attempt to pass another vehicle by overtaking said vehicle without then and there sounding audible and suitable signal before passing said vehicle going in the same direction, the said P. R. Russell being then and there the person in charge of and operating said overtaking vehicle."

Appellant filed a motion to quash both counts in the information; the first count because it is indefinite and uncertain, charging no specific offense, and does not specifically define with the certainty required what particular acts or omissions will be an offense, and the second count because there is no such offense defined by the act in question as "attempting" to pass another vehicle, etc. The motion to quash both counts was overruled, and exceptions reserved. Both counts were submitted to the jury, and a general verdict returned. The former opinion did not discuss the first count, but was devoted solely to a review of the questions raised under the second count.

Section (a) of article 820k, Vernon's Texas Crim. Stats., 1918 Supplement, under which it is attempted to charge an offense against appellant in the first count in the indictment, reads as follows:

"The driver or operator of any vehicle in or upon any public highway in this state, shall drive or operate such vehicle in a careful manner with due regard for the safety and convenience of pedestrians and all other vehicles or traffic upon such highway, and wherever practicable shall travel upon the right hand side of such highway."

The remaining portion of this section is not quoted here as not having application. It sometimes is helpful to revert to the fundamental law as stated in our Codes, in order to determine questions that arise under the construction of statutes, and we find the very first article in our Penal Code provides:

"The design of enacting this Code is to define in plain language every offense against the laws of this state, and affix to each offense its proper punishment."

Article 3, P. C., provides:

"In order that the system of penal law in force in this state may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto by the written law of this state."

The motion of appellant's counsel to quash the first count in the information arraigns the provisions of section (a) of article 820k in the following language:

"(1) Said count is indefinite and uncertain, and charges no specific offense against the law of this state.

"(2) Because the language of the statute under which said count is drawn is too indefinite and uncertain in its language to define an offense under the Constitution and law of this state, and does not specifically define with that certainty the act or omission constituting such offense as is necessary to properly define the same, and as is necessary to put the defendant upon notice of the particular act or omission with which he is charged, and which is charged against him as a violation of the law, and said section (a) of article 820k wholly fails to sufficiently define with that certainty required by the Constitution and law of this state the act or omission attempted to be alleged and declared an offense against the law.

"Said article 820k, paragraph (a) undertakes to define as an offense the...