Taubert v. State, 22567.

• Decision Date: 08 December 1943
• Docket Number: No. 22567.,22567.
• Citation: 176 S.W.2d 955
• Parties: TAUBERT v. STATE.
• Court: Texas Court of Criminal Appeals

176 S.W.2d 955

TAUBERT v. STATE.

No. 22567.

Court of Criminal Appeals of Texas.

December 8, 1943.

Rehearing Denied January 26, 1944.

Appeal from County Court at Law No. 1, Bexar County; McCollum Burnett, Judge.

Robert E. Taubert was convicted of negligent homicide, and he appeals.

Affirmed.

McClanahan & Loughridge, of San Antonio, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for negligent homicide, punishment being by fine of $100.

Appellant waived a jury and his case was tried before the court, which resulted in a general judgment of guilty.

Appellant sought to have the complaint and information quashed. He complains, first, because his motion to that end was overruled. The information, following the complaint, alleged that appellant was engaged in the lawful act of driving a motor vehicle upon a highway in Bexar County, and that he was guilty of negligence in three particulars. In substance, it is averred that (a) he failed to keep a proper lookout for Dorothy Lee Pollard, who was upon said highway; (b) that he failed to have the motor vehicle which he was driving under proper control; and (c) that he failed to guide said motor vehicle away from said Dorothy Lee Pollard; that as a result of said acts of negligence he drove said motor vehicle into and against an automobile in which Dorothy Lee Pollard was a passenger, inflicting upon her injuries which caused her death. Other averments bring the case under negligent homicide of the first degree. Arts. 1231-1236, P.C. We are inclined to think meritorious appellant's criticism of the second averment of negligence, viz: that he failed to have his motor vehicle under proper control. It is a well-recognized principle in criminal pleading that an indictment or information should charge the acts or omissions thought to constitute an offense with sufficient particularity to advise an accused of the specific acts of misconduct he will be required to meet upon the trial. The mere statement of a conclusion is not sufficient. See Williams v. State, 12 Tex.App. 395. Many acts might be committed, or omitted, which would place the motor vehicle out of proper control. The accused would scarcely know from the general charge here found what act or omission on his part the State would seek to prove as sustaining its averment of want of proper control. In Cooper v. Ajax Distributors, Inc., 8 W. W. Harr. 361, 192 A. 614, the Superior Court of Delaware held that the mere allegation that a party operated his motor vehicle "without having the same under full and complete control" was not sufficient to inform the party of the charge he was required to meet. We think the court should have sustained appellant's motion to quash in so far as the second alleged ground of negligence was concerned; at least, no judgment of conviction should have been predicated on said ground of alleged negligence.

If we be right in the conclusions as to the insufficient averment as to the second ground of negligence, it does not necessarily follow, however, that a reversal of the judgment is demanded. If there was any way to apprise us that the judgment of conviction was based upon said ground of negligence, of course, a reversal would be called for. The case was tried before the court. We have no conclusions of fact advising us upon what grounds of negligence the court predicated his action. A general judgment of guilty by the trial court is all this court has to guide it in the premises. Where a case is tried before the court a general judgment of "guilty" is the same as a general verdict of "guilty" where the case has been tried before a jury and more than one count in the indictment or information has been submitted by the court in his charge to the jury. The rule in such case is that if some counts are bad and some are good, and all are submitted to the jury, and a general verdict of "guilty" is returned, the court will apply the verdict to any one of the good counts which finds sufficient support in the evidence. See Briggs v. State, 108 Tex.Cr.R. 169, 300 S.W. 56; Southern v. State, 34 Tex.Cr. R. 144, 29 S.W. 780, 53 Am.St.Rep. 702; Brunk v. State, 109 Tex.Cr.R. 474, 6 S.W. 2d 353. The opinion in the case last cited as reported does not show that the case was tried before the court; however, an examination of the original record does reveal such to be true. There were two counts in the information charging violation of a city ordinance. One count was held bad, the other good. Upon a general judgment of "guilty" by the court it was applied to the good count. So, in the present case, there being a general judgment of "guilty" by the court, it should be applied to such averments of negligence as are sufficient if they find support in the evidence. Under such application of the principle controlling ...