Van Arsdale v. State

• Decision Date: 20 December 1922
• Docket Number: (No. 7102.)
• Citation: 249 S.W. 863
• Parties: VAN ARSDALE v. STATE.
• Court: Texas Court of Criminal Appeals

249 S.W. 863

VAN ARSDALE v. STATE.

(No. 7102.)

Court of Criminal Appeals of Texas.

December 20, 1922.

Rehearing Denied April 4, 1923.

Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.

J. E. Van Arsdale was convicted of negligent homicide, and he appeals. Affirmed.

Rasbury, Adams, Stennis & Harrell, of Dallas, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the criminal district court of Dallas county of negligent homicide, and his punishment fixed at one year and one day in the county jail.

Miss Grace Rodgers was killed in an automobile accident on a public highway north of Dallas, in Dallas county. Appellant was driving the car. The indictment contained six counts, the first, fourth, and sixth of which were abandoned. The third and fifth counts charge negligent homicide of the second degree, and the second negligent homicide of the first degree. The verdict was on the form submitted as suitable in the event the jury convicted under the third and fifth counts. We will therefore confine our discussion to such questions as arise under the law and facts applicable to negligent homicide of the second degree.

By the terms of articles 820h and 822c, c. 1, tit. 13, Penal Code (Vernon's Complete Texas Statutes 1920) it is made a misdemeanor for an intoxicated person to drive an automobile upon any public highway of this state. By the terms of article 820o of said chapter it is made unlawful for any person to drive an automobile on such highway at a greater rate of speed than 25 miles per hour. It will thus follow that one embraced in either class just mentioned would be engaged in an unlawful act. The third count of this indictment charges that on the date named appellant was engaged in an unlawful act, i. e., the driving of an automobile on a public highway while he was intoxicated, and that in so doing, without apparent intention to kill, but while danger of death was apparent, appellant negligently and carelessly overturned said automobile, and thereby caused the death of Grace Rodgers. Count No. 5 charges that appellant was engaged in an unlawful act, i. e., driving an automobile at a rate of speed greater than 25 miles per hour on such highway, and that so doing he killed Grace Rodgers by negligently and carelessly overturning said automobile upon her, there being no apparent intention to kill, but apparent danger of causing death.

In his motion to quash the indictment appellant makes three similar grounds of attack on the third and fifth counts: One that there is no such crime as an unlawful act, and another that, while said count charges that appellant was intoxicated while driving a car on a highway, it also charges that Grace Rodgers was killed by the overturning of said automobile, which latter is not an unlawful act. The other ground is that it fails to allege that the danger of killing Grace Rodgers was apparent to the defendant. We uphold neither of said contentions. The two counts are identical, save that one charges intoxication, and the other excessive speed, as that which made the act of appellant unlawful. A quotation of one count will suffice. Count No. 3 is as follows:

"And the grand jurors aforesaid, upon their oaths aforesaid, do further present in and to said court at the said term thereof, that one J. E. Van Arsdale on the 22d day of May, in the year of our Lord 1921, with force and arms, in the county and state aforesaid, was in the performance of an unlawful act, in this, to wit: "That the said J. E. Van Arsdale was unlawfully driving an automobile upon and along the Dallas and Plano Pike, a public highway in said county and state, while intoxicated and the said J. E. Van Arsdale did then and there, while unlawfully driving said automobile while so intoxicated on said highway, kill Grace Rodgers by negligently and carelessly overturning said automobile upon and against the body and person of said Grace Rodgers, who was then and there in and occupying said automobile as a passenger therein; there being no apparent intention upon the part of the said J. E. Van Arsdale to cause the death of the said Grace Rodgers; and there being then and there apparent danger of causing the death of the said Grace Rodgers by overturning said automobile upon and against the person and body of the said Grace Rodgers, which danger would have been known to the said J. E. Van Arsdale and avoided by him if he had used that degree of care and caution which a man of ordinary prudence would use under like circumstances.'"

The elements of negligent homicide in the second degree thus appear to be charged, i. e., a homicide by the act of appellant; that such homicide resulted from his carelessness and negligence; the apparent danger of causing death; the lack of an intent to kill; and that at the time of such homicide appellant was engaged in an unlawful act. The count under consideration is in accord with approved forms. Wilson, Criminal Forms, 508; Anderson v. State, 27 Tex. App. 177, 11 S. W. 33, 3 L. R. A. 644, 11 Am. St. Rep. 189; Talbot v. State, 58 Tex. Cr. R. 324, 125 S. W. 906. We do not think that part of said count wherein occurs the following:

"And there being then and there apparent danger of causing the death of the said Grace Rodgers by overturning said automobile upon and against the person and body of the said Grace Rodgers, which danger would have been known to the said J. E. Van Arsdale and avoided by him if he had used that degree of care and caution which a man of ordinary prudence would use under like circumstances,"

imposes any unfair or illegal burden on the accused, nor is there any departure from those rules of pleading which provide that such things as are necessary to prove must be alleged. It is alleged that the danger of causing the death of Grace Rodgers was then and there apparent. This was a necessary allegation. The further statement that such danger would have been known to appellant if he had used that degree of caution and care which a man of ordinary prudence would use under like circumstances is in the exact language of Mr. Willson's Crim. Forms, above referred to, which has uniformly received the sanction of this court. No exception was taken to the introduction or rejection of any testimony on this trial. Bill of exceptions No. 1 is to the overruling of the motion to quash, which we have above discussed.

The second bill of exceptions presents to us the exceptions taken to the charge of the trial court. We do not set out the exceptions in full, but present our views of same. While the charge of the court does not in express terms state to the jury that the driving of a car on a highway by one intoxicated is an unlawful act, nor does it tell the jury that the driving of a car on the highway at a rate of speed greater than 25 miles an hour is an unlawful act, still said charge does tell the jury that, if they believe beyond a reasonable doubt that appellant was doing either of those things at the time he overturned said automobile in the manner as described in the indictment, he would be guilty of negligent homicide in the...