Wilson v. State, 14755.

• Decision Date: 12 April 1933
• Docket Number: No. 14755.,14755.
• Citation: 59 S.W.2d 399
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

59 S.W.2d 399

WILSON v. STATE.

No. 14755.

Court of Criminal Appeals of Texas.

April 12, 1933.

Appeal from District Court, Smith County; Gordon Simpson, Judge.

Loys Wilson was convicted of driving an automobile on the highway while to some extent under the influence of intoxicating liquor, and he appeals.

Reversed and prosecution dismissed.

Gentry & Gray, of Tyler, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

The offense is that defined in article 802, P. C. 1925, from which the following is quoted: "Any person who drives or operates an automobile * * * upon any public road or highway in this State while such person is intoxicated or in any degree under the influence of intoxicating liquor," etc.

The sole question involved in this appeal is whether the indictment charges an offense. The part of the indictment which is relevant is in the following words: "* * * Did then and there unlawfully drive and operate a motor vehicle, to-wit, an automobile upon a public street within the limits of an incorporated city in this state, to-wit, upon North Fannin Street in the city of Tyler, Smith County, Texas, while he, the said Loys Wilson, was then and there to some extent under the influence of intoxicating liquor."

The charge of the court followed the language of the indictment; that is to say, the jury was instructed to convict the accused if, while driving an automobile upon the highway, he was "to some extent" under the influence of intoxicating liquor.

In no previous case since the statute was enacted has this court found it necessary to pass directly upon the sufficiency of the averment in question.

In the case of Williams v. State, 100 Tex. Cr. R. 50, 271 S. W. 628, the words "in any degree" were not used in the indictment, but the statute was attacked. It was held that their presence in the statute did not render it void. A like attack was made upon the statute with the same result in Nelson's Case, 97 Tex. Cr. R. 210, 261 S. W. 1046; likewise in Nunn's Case, 114 Tex. Cr. R. 487, 26 S.W. (2d) 648.

An indictment charging that the accused was intoxicated or under the influence of intoxicating liquor has been upheld although it contained an averment using the words "in any degree" under the influence of intoxicating liquor. See Wimberly v. State, 109 Tex. Cr. R. 581, 6 S.W.(2d) 120; Stewart v. State, 108 Tex. Cr. R. 199, 299 S. W. 646. Brown v. State, 108 Tex. Cr. R. 360, 300 S. W. 81; Rodriguez v. State, 104 Tex. Cr. R. 7, 282 S. W. 225; Boyd v. State, 106 Tex. Cr. R. 492, 292 S. W. 1112.

In the concurring opinion in Fuller v. State, 116 Tex. Cr. R. 310, 32 S.W.(2d) 358, 359, it is said: "The words, `or in any degree under the influence of intoxicating liquor,' as contained in article 802, P. C., are too indefinite to define a criminal offense. The appearance of the words in the statute, however does not vitiate it. * * * In the indictment it is charged that he drove an automobile upon a public street while he was intoxicated, and the jury was instructed in language to the same effect. Therefore the use of the words `in any degree under the influence of intoxicating liquor,' so far as they affect the present case, is merely surplusage, and could not affect the verdict."

A like case is Herring v. State, 117 Tex. Cr. R. 211, 35 S.W.(2d) 737.

The conviction in the present case is based solely upon the phase of the statute italicized above, and is assailed upon the proposition that the words "in any degree under the influence of intoxicating liquor," as they appear in the act of the Legislature, do not create a crime. Our statute, art. 6, P. C., declares inoperative an unintelligible law. Instances in which statutes or parts of statutes have been condemned as obnoxious to the statute mentioned are numerous. The rule is fundamental through the American and English jurisdictions. It was said by Lord Coke: "The acts of parliament ought to be plainly and clearly, and not cunningly and darkly, penned, especially in legal matters."

The interpretation of statutes is approached upon the presumption of their validity. They are not to be held invalid capriciously nor merely because of difficulty in ascertaining their meaning, but a statute cannot be enforced where its meaning cannot be determined by any known rules of construction. See Lewis' Sutherland on Statutory Construction (2d Ed.) Vol. 2, § 86, and notes. Among the specific instances in which statutes or parts of statutes have been declared void, the following are mentioned, together with the language held indefinite: Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 80, 96 Am. St. Rep. 765, "murder by mob violence"; Russell v. State, 88 Tex. Cr. R. 512, 228 S. W. 566, "operating a motor vehicle upon the highway in a careless manner"; Griffin v. State, 86 Tex. Cr. R. 498, 218 S. W. 494, "seriously interfere with the sight of or temporarily blind the vision of a driver of a vehicle approaching from an opposite direction"; Cinadr v. State, 108 Tex. Cr. R. 147, 300 S. W. 64, "needlessly killing a hog"; Tozer v. United States (C. C.) 52 F. 917, 919, "undue and unreasonable advantage"; Ex parte Jackson, 45 Ark. 158, "injurious to the public health, or public morals, or to the perversion or obstruction of public justice, or the due administration of the laws"; Chicago & N. W. Railway Co. v. Dey (C. C.) 35 F. 866, 1 L. R. A. 744, "unreasonable rate"; Ex parte Slaughter, 92 Tex. Cr. R. 212, 243 S. W. 478, 479, 26 A. L. R. 891, "closely built up."

In addition to the opinions of this court that have been cited, there are many others which give effect to the principle. Among them may be mentioned the following: Dockery v. State, 93 Tex. Cr. R. 220, 247 S. W. 508; Overt v. State, 97 Tex. Cr. R. 202, 260 S. W. 856; Ex parte Montgomery, 86 Tex. Cr. R. 636, 218 S. W. 1042. It is an unnecessary, useless, and confusing part of a statute which is otherwise sound. It is in conflict with the statutory declaration requiring certainty in the formation of statutes, and of article 1, § 10, of the Constitution of the state guaranteeing to one accused of crime information as to the nature and cause of the accusation against him.

The words "in any degree" in the statute are useless for the reason that the other terms therein, namely, "intoxicated" or "under the influence of intoxicating liquor," have often been defined in judicial decisions and are well understood in legal parlance. See 68 A. L. R. page 1360, note 4. The use of the words "in any degree" as used in the statute, if recognized as charging an offense, are capable of mischief in making an opening for expert testimony touching the quantity of intoxicating liquor that may or may not produce the effect contemplated in the statute. What is required to bring one "in any degree" under the influence of intoxicating liquor? The statute does not declare. Who then must determine what are the essential elements of the offense which the act attempts to denounce? What standard would make uniform and stable the criminal denunciation? The peculiar fancy of the individuals who compose the jury is the sole guide. In the books are standards by which it may be declared that one is intoxicated. The terms "intoxicated" and "under the influence of intoxicating liquor" are found in the dictionaries and in the law books. The term "to any degree under the influence of intoxicating liquor" is an innovation. No attempt to define it is made by the law-making power. No criterion can be found in the books by which the trial court can define it in instructing the jury. It is denounced as a felony, but no information is given, either to the individual charged or to the jury by which to determine what is meant by the term. That as in the statute it does not mean "intoxicated" is manifest from the verbiage of the statute itself, wherein it says, "while such person is intoxicated or in any degree under the influence of intoxicating liquor." It recognizes the distinction between intoxicated and "in any degree" under the influence of intoxicating liquor, but fails to locate the point of distinction and leaves it purely to the imagination or volition of the jurors who happen to be trying the particular case. It is upon a parity with many of the cases decided by this court holding statutes invalid for uncertainty which are cited above, and offends against the principle controlling in all of them.

For the reason that the indictment does not charge an offense, the judgment is reversed and the prosecution ordered dismissed.

LATTIMORE, Judge (dissenting).

I regret the necessity for this dissent. The indictment herein charged appellant with driving a motor vehicle on North Fannin street of the city of Tyler while he was "to some extent" under the influence of intoxicating liquor. In fact, he was admittedly drunk, and the only defense interposed on the trial was that there was no such street in Tyler as North Fannin street. No issue was made as to the extent or degree of appellant's drunkenness. No motion was made to quash the indictment. On appeal appellant raises in his brief the question that the indictment herein charges no violation of the law because it contains the averment that he was "to some extent" under the influence of intoxicating liquor, but no authorities are cited and no argument apparently made in support of the position. My associates are of opinion that the allegation "to some extent" makes the indictment bad, and that for this reason the judgment must be reversed and the prosecution ordered dismissed. It seems difficult to me to understand how such conclusion can be reached.

Article 802, P. C., under which this conviction was had, has been on our statute books for ten years, and every phase of it has apparently been considered and construed by this court as now constituted. The exact language of the statute forbids that any person shall drive a motor vehicle on a public...