Wright v. State

• Citation: 235 S.W. 886
• Decision Date: 14 December 1921
• Docket Number: (No. 6520.)
• Parties: WRIGHT v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

235 S.W. 886

WRIGHT v. STATE.

(No. 6520.)

Court of Criminal Appeals of Texas.

December 14, 1921.

Appeal from Harris County Court at Law; Roy F. Campbell, Judge.

John Wright was convicted of aggravated assault, and he appeals. Reversed and remanded.

A. T. Carleton, of Houston, for appellant.

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

LATTIMORE, J.

Appellant was convicted in the county court at law of Harris county of the offense of aggravated assault, it appearing from the record that the prosecution was had under section 35, chapter 207, Acts of the Regular Session of the 35th Legislature (Vernon's Ann. Pen. Code Supp. 1918, art. 1022a) which makes it an aggravated assault for one to drive a motor vehicle of any kind willfully and with gross negligence against any person causing injury. The punishment affixed was a fine of $300.

The charge of the trial court was verbal, but he read to the jury, as a part of said charge, two sections of the Automobile Law embraced in the chapter above mentioned, which sections are as follows:

"Every person operating or driving a motor or other vehicle on the public highways of this state, shall * * * drive the same in a careful and prudent manner, and at a rate of speed not greater than is reasonable and proper, having regard to the traffic use of the highway."

"No person shall operate or drive a motor or other vehicle on any public highways" of this state, "at a greater rate of speed than ten miles per hour in the business districts of cities of more than forty thousand population." Section 20 (article 820o).

The reading of said sections of the law to the jury was properly excepted to. The ordinary rule in misdemeanor cases is that an exception to the charge as given is not enough, but that a special charge, correctly presenting the matter so excepted to, must also be presented and refused, in order to make available a complaint leveled at the charge. This rule does not seem to us applicable in such case as the one under consideration. No special charge could have corrected the error, if any, resulting from reading such portions of the law to the jury as a part of the charge. We therefore consider the matter of error as sufficiently before us. What issue in the case was elucidated by reading such sections to the jury? The effect of such reading was to convey to the minds of the jurors that a man who drove his car on a street in the business section of Houston at a rate of speed greater than 10 miles per hour violated the law; also that a man who drove his car on such street in a manner not prudent and careful, and at a rate of speed not reasonable and proper, violated the law.

Appellant was not charged with violating either of said sections of the statute, but with driving his car against another with gross negligence. Unless said sections so read contained something which in some way aided the jury in the solution of the question involved, they were either harmful or of no value whatever. If only the latter, it might be damnum absque injuria. But it seems to us strongly probable that reading such sections to the jury was harmful. The court verbally instructed them, among other things, what was gross negligence, and then, turning to a law...