
    GOODWIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 15, 1911.
    On Motion for Rehearing, March 8, 1911. Further Rehearing Denied June 23, 1911.)
    1. Bail (§ 65) — Appeal — Recognizance— Requisites
    Under Code Cr. Proc. 1895, art. 887, as amended by Acts 25th Leg. c. 5, providing a form of recognizance on appeal in misdemean- or cases, a recognizance in a misdemeanor case must, to prevent a dismissal of the appeal, state the punishment assessed against accused.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 285; Dec. Dig. § 65.]
    On Rehearing.
    2. Highways (§ 186) — Use of Highway-Speed of Automobiles — Offenses — Complaint — Sufficiency.
    Under Code Cr. Proc. 1895, art. 448, providing that an indictment, which gives defendant notice of the particular offense charged is sufficient, a complaint alleging that accused operated an automobile at a greater speed than IS miles an hour on a public road not a speedway charges a violation of Acts 30th Leg. c. 96, regulating the speed of automobiles on public highways.
    [Ed. Note. — For other cases, see Highways, Dec. Dig. § 186.]
    3. Highways (§ 186) — Use of Highways— Automobiles — Statutoby Offenses.
    Acts 30th Leg. c. 96, prohibiting the operation of automobiles at a speed greater than 18 miles an hour on any public road , not a speedway, does not make the intent of ah operator of an automobile an element ‘of the offense; but an operator must at his peril keep within the statutory limit.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. § 476; Dec. Dig. § 186.]
    4. Highways (§ 188) — Use of Highways— Automobiles — Statutory Offenses.
    A driver of an automobile is not relieved from the penalty for operating it at a speed in excess of that fixed by Acts 30th Leg. c. 96, on the ground that the automobile was under the control of a third person riding therein, unless the driver shows that he was under duress and drove the automobile at the instance of the third person.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. § 476; Dec. Dig. § 186.]
    5. Criminal Law (§ 1066) — Appeal — Bill of Exceptions.
    Grounds of complaint in a motion for new trial in a misdemeanor case cannot be considered, unless bills of exceptions are reserved to the rulings of the trial court.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. § 2686; Dee. Dig. § 1066.!
    
      6. Ceiminal Law (§ 1090) — Appeal—Bill op Exceptions.
    Where, in a misdemeanor case, there was some evidence of a fact essential to a conviction, and there was no requested charge that the evidence was insufficient, the question of the insufficiency of the evidence, not presented by a bill of exceptions in any form, is not reviewable on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1090.]
    Appeal from Jefferson County Court; R. W. Wilson, Judge.
    B. W. Goodwin was convicted of a misdemeanor, and lie appeals.
    Affirmed.
    McDowell & Davidson, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

The appellant in this case was tried and convicted in the county court of Jefferson county, charged with a misdemeanor.

The Assistant Attorney General has filed a motion to dismiss this appeal because of the insufficiency of the recognizance, in that said recognizance does not state the punishment assessed against the appellant. In May v. State, 40 Tex. Cr. R. 196, 49 S. W. 402, it is held: “The Twenty-Fifth Legislature amended article 887 of the Code of Criminal Procedure, and provided a form for recognizance on appeal in misdemeanor cases. Among other things, said bond is conditioned that ‘appellant, who has been convicted in this case of a misdemeanor, and his punishment assessed at ip-, as more fully appears from the judgment of conviction, shall appear before this court,’ etc., and a recognizance that does not state the punishment assessed is insufficient.”

In this case the recognizance is defective in that particular, and the motion of the Assistant Attorney General is sustained, and the appeal in this case is dismissed.

On Motion for Rehearing.

At a former day of this term this appeal was dismissed because of insufficient recognizance. Application has been filed to reinstate this cause, and a recognizance as required by law filed, and the order dismissing this cause, is set aside, and we will now consider the case on its merits.

1. Bill of exception No. 1 complains of the action of the court in refusing to quash the information and complaint. Omitting the formal parts, the information charges: “That on or about the 6th day of November, 1909, defendant did then and there unlawfully drive and operate upon a public road in the county of Jefferson and state of Texas an automobile at a greater rate of speed than 18 miles an hour, the said public road upon which said automobile was then and there driven and operated not being then and there a race course or speedway,” etc. The court did not err in overruling the motion, as the information sufficiently charges an offense under Acts of the 30th Legislature, p. 193. Article 448, Code of Criminal Procedure 1895.

2. In bills of exceptions Nos. 2 and 3 appellant complains, first, that the court failed to give a special instruction that, if defendant was driving the car under the control of another, he would not be guilty, even though he was driving at a greater rate of speed than 18 miles an hour; second, that if defendant was operating his car at a greater rate of speed than 18 miles an hour, yet if he did not do so willfully, he -would not be guilty. The article of the Code under which defendant was tried does not require that the state prove that the act was “willfully” done. It makes it an offense to drive a car at a greater rate of speed than that named, and if the jury believed that he was driving the car at a speed greater than permitted by law they would be authorized to convict. Very few people in driving a car have an evil intent; but the Legislature, in protection of the public, has decreed it wise to limit the speed at which,these cars may run, and each one is required to keep within that limit.

As to the car being under the control of another riding therein, this would be no defense, unless the driver should show he was under duress, and so drove the car at the instance and requirement of another. The evidence does not suggest such a condition. These are all the bills of exception in the record.

There are other grounds of complaint in the motion for a new trial; but, this being a misdemeanor, we do not consider such matters, unless charges were asked covering the matter complained of, and bills of exception reserved to the action of the court.

In this case the complaint is that the testimony is insufficient to show that the road was a public road. No charge was asked on this phase of the case. It is not presented to us by a bill of exception in any form; this being a misdemeanor, and there being some evidence under which the jury would be authorized to find it a public road. See Haynes v. State, 2 Tex. App. 84, and authorities cited.

The judgment is affirmed.  