Watkins v. State, 24408.

• Decision Date: 15 June 1949
• Docket Number: No. 24408.,24408.
• Parties: WATKINS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 24

223 S.W.2d 24

WATKINS v. STATE.

No. 24408.

Court of Criminal Appeals of Texas.

June 15, 1949.

Rehearing Denied October 12, 1949.

Commissioners' Decision.

Appeal from District Court, Kaufman County; A. A. Dawson, Judge.

Bearna Watkins was convicted of murder without malice, and he appeals.

Reversed and cause remanded.

A. G. Henry, Kaufman, W. H. Reid, Dallas, for appellant.

Robert K. Ramsey, County Attorney, Terrell, Fred V. Meridith, Former County Attorney, Terrell, Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder without malice. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant's first contention is that the evidence is insufficient to sustain his conviction.

It was the theory of the state that the appellant, while intoxicated and under the influence of intoxicating liquor, drove his automobile into the automobile of the deceased causing it to collide therewith and inflict injuries upon the deceased from the effects of which he died. It was appellant's theory that he was not intoxicated; that he did not drive his car into the automobile of the deceased, but that the deceased drove his automobile into that of the appellant and that he (deceased) caused the collision and the injuries to himself which caused his death.

The record reflects that on the 28th day of July, 1947, John Stewart and his family were traveling in an automobile on Highway 80 going from Longview to Cleburne. When they reached a point on said highway near the Van Zandt and Kaufman County line, their car and the car driven by appellant on said highway collided. The record shows that Stewart and family were going west while appellant was driving east. There was some testimony given by the officers to the effect that appellant was drunk at the time and place of the collision. There was also testimony given by the officers to the effect that when they arrived at the scene of the collision, anywhere from an hour to three hours after the occurrence, they noticed tire tracks from the south side over to the north side of the center line of the highway where the collision occurred which indicated to them that they had been made by appellant's automobile.

Two witnesses who lived near the highway, one on the north and the other on the south side of it, were sitting on their porches and saw the collision. They testified that just before the collision they heard a noise which sounded like a tire blowout on the car traveling west and they noticed that the car turned over two or three times and then they heard the crash. Another witness, Bud Johnson, who lived near the highway and about two hundred yards east of where the collision occurred, testified that he was eating supper; that he heard a noise which sounded like a tire blow-out and immediately thereafter he heard the crash; that he went to the scene at once; that upon his arrival there he found one of his neighbors, Raymond Carnes, present; that at the suggestion of Carnes he went to a telephone and called an ambulance; that from the conduct of appellant, these witnesses did not think that he was drunk. Bud Johnson testified that the right rear tire of the Stewart car showed it had a blow-out. The foregoing is a brief statement of the salient facts proved on the trial.

The state's evidence as to who was the cause of the collision resulting in the death of Mr. Stewart rests principally upon circumstantial evidence, yet we would not be authorized to say that it is not sufficient to raise an issue of fact for the jury to determine. We therefore overrule appellant's contention.

By Bill of Exception No. 1, appellant complains of the action of the trial court in declining to sustain his motion to quash the indictment on the ground that art. 802c, of Vernon's Ann. Penal Code, as enacted by the Legislature in 1941, chapter 507, is unconstitutional. We do not deem it necessary to here discuss the question because the same question was before this court in the case of Ruedas v. State, 143 Tex.Cr.R. 291, 158 S.W.2d 500, and in that case this court held adversely to appellant's contention.

By Bill of Exception No. 2 he complains of the court's action in declining to sustain his motion to quash the second count in the indictment based on the ground that it is duplicitous and multifarious in that it charges the defendant with committing the alleged offense while intoxicated and while under the influence of intoxicating liquor thereby charging two separate offenses. We see no merit in his contention, because if he was intoxicated he was under the influence of intoxicating liquor. Moreover, the state charged intoxication and while under the influence of intoxicating liquor in the conjunctive and not disjunctive. Where there are various ways set forth in the statute by which the offense may be committed, if the pleader desires to charge more than one of such ways, it is proper that the various methods be charged conjunctively. See Johnson v. State, 75 Tex.Cr.R. 177, 171 S.W. 211; and Venturio v. State, 37 Tex. Cr.R. 653, 40 S.W. 974.

By Bill of Exception No. 3 he complains...