Worley v. State

• Decision Date: 25 May 1921
• Docket Number: (No. 6290.)
• Citation: 231 S.W. 391
• Parties: WORLEY v. STATE.
• Court: Texas Court of Criminal Appeals

231 S.W. 391

WORLEY v. STATE.

(No. 6290.)

Court of Criminal Appeals of Texas.

May 25, 1921.

Appeal from Young County Court; W. H. Reeves, Judge.

J. A. Worley was convicted of negligent homicide, and he appeals. Reversed, and cause dismissed.

Marshall & King, of Graham, and Kay, Akin & Kenley, of Wichita Falls, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

MORROW, P. J.

Appellant was convicted for the offense of negligent homicide.

We quote the indictment, omitting the formal part:

"One J. D. Worley did then and there unlawfully operate a motor vehicle, to wit, an automobile upon a public highway of the state of Texas, to wit, a public street of the city of Graham, Young county, Tex., and did then and there while so operating said motor vehicle, willfully, and with gross negligence, collide with and injure another person, to wit, Baxter Harley, the said Baxter Harley being then and there a pedestrian upon such highway, which said injuries did then and there result in the death of the said Baxter Harley, against the peace and dignity of the state," etc.

In Automobile Law of 1917, § 35 (article 1022a of Vernon's Ann. Penal Code Supp. 1918), we find the following:

"If any driver or operator of a motor vehicle or motorcycle upon the public highways of this state shall willfully or with gross negligence, collide with, or cause injury to any other person upon such highway, he shall be held guilty of aggravated assault, and shall be punished accordingly, unless such injuries result in death, in which event said party so offending shall be dealt with under the general law of homicide."

It was not the purpose or effect of this statute to change the law of homicide, but the object was to add a new clause to the law of aggravated assault. The various elements of the law of homicide are contained in the Code:

Negligent homicide is "such as happens in the performance of a lawful act," and such as "occurs in the performance of an unlawful act." Penal Code, art. 1113.

One who, "in the performance of a lawful act, shall, by negligence and carelessness, cause the death of another, * * * is guilty of negligent homicide of the first degree." Penal Code, art. 1114.

"To constitute this offense, there must be an apparent danger of causing the death of the person killed, or some other." Penal Code, art. 1116.

"To bring the offense within the definition of homicide by negligence, either of the first or second degree, there must be no apparent intention to kill." Penal Code, art. 1119.

Doubtless one, by the use...