Wimberly v. State
| Decision Date | 15 February 1928 |
| Docket Number | (No. 11053.) |
| Citation | 6 S.W.2d 120 |
| Parties | WIMBERLY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Gillespie County; J. H. McLean, Judge.
Joe Wimberly was convicted of driving an automobile on a public street while intoxicated, and he appeals. Affirmed.
W. C. Linden, of San Antonio, for appellant.
A. A. Dawson, State's Atty., of Austin, for the State.
Conviction for driving automobile while intoxicated upon a public street; punishment, a fine of $100 and 30 days in the county jail.
Appellant was convicted of a felony. Claiming the record to present no showing of a sentence, the state moves to dismiss the appeal. We find no sentence in the record. The motion is granted. The appeal is dismissed.
On Motion to Reinstate Appeal.
At a former day of this term the appeal was dismissed because of the fact that no sentence appeared in the record. Appellant files his motion for reinstatement, and accompanies same by a duly certified copy of a sentence which appears to have been properly entered. The judgment of dismissal is set aside and the cause reinstated, and the case now considered on its merits.
The facts show, from the state's standpoint, that appellant drove a car while under the influence of intoxicating liquor on highway No. 9 which runs through the town of Fredericksburg in Gillespie county. This occurred on the night of February 14, 1927. A number of witnesses testified to the facts supporting the state's theory. Appellant does not seem to have testified, but he introduced a witness who testified that on the night in question appellant — in the language of witness — "was as drunk as a monk," and that they started together down to the City Café; that they got in the car, and appellant tried to drive, and witness told him if he did not let him drive, he was going to get out of the car, whereupon appellant turned the steering wheel over to witness. Witness stated that, when they left the café, he again drove the car, over the protest of appellant, who wanted to get under the wheel and drive it away from the café. On cross-examination this witness admitted that, when the car left the café, appellant got in the driver's seat and took the wheel and turned the car around, and came very near running into a man out there in the street. Witness admitted at this time appellant was operating the car, and that he drove it a distance estimated by witness to be about as far as across the courthouse, or building in which the case was being tried. This is substantially the testimony. We think it sufficiently shows appellant's guilt.
The transcript contains two bills of exception. The first complains of a statement made by the district attorney in his closing...
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