
    BROWN v. STATE.
    (No. 9013.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1926.)
    1. Criminal law <&wkey;8!4(3)— Submission of issue involving rate af speed, not supported by evidence, was error.
    In a- prosecution for a negligent homicide while driving a motor vehicle, based upon Acts 38th Leg. (1923) e. 155, submission of issue involving the question whether accused drove 35 miles per hour, as to which there was no cogent evidence, was error.
    2. Automobiles <@=>357 — Charge in prosecution for homicide failing to state existence of apparent danger of death from unlawful act, held faulty.
    In a prosecution for negligent homicide, resulting from a collision of accused’s automobile with parked truck, based upon Acts 38th Leg. (1923) c. 155, a charge failing to state existence of apparent danger of death resulting from the alleged unlawful act was faulty for that reason.
    3. Criminal law <@=>13 — Whether certain section of statute complies with statute as to degree of certainty in definition of offenses held extremely doubtful.
    Because of the indefiniteness of Acts 38th Leg. (1923) c. 155, § 1, declaring that a person operating a vehicle shall do so in a careful and prudent manner, and a person violating any provisions of section 1 shall be deemed guilty of misdemeanor, it is extremely doubtful, in view of Pen. Code 1911, art. 3, whether such section complies with the law as to degree of certainty in the definition of offenses.
    Appeal from Martin' County Court; A. C. Eidson, Special Tudge.
    Doc Brown was convicted of negligent homicide, and he appeals.
    Reversed and remanded.
    B. Prank Haag, of Midland, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is negligent homicide; punishment fixed at confinement in . the county jail for a period of three months. The transaction upon which the prosecution is based was a collision in which the automobile driven by the appellant collided with a truck which was standing upon the highway. Two girls were in the car driven by the appellant. One of these was his sister, Alice Brown; the other was Miss Dollie Wilson, the deceased.

Paragraphs 2 and 4 of the court’s charge present the state’s case. They are respectively as follows:

“You are charged that the law of this state applying to this case is that every person who shall operate any motor vehicle on the public highways of this state, shall drive same in a careful and prudent manner, and at a rate of speed not greater than is reasonable and proper, having due regard for the trafile and use of the highway, and no person shall operate or drive any motor vehicle at such a rate of speed as to endanger the life or limb of any person or the safety of any property, and the law further provides that it shall be unlawful in any event to drive a motor vehicle at a rate of speed greater than 35i miles per hour, and you are charged that the operation of a motor vehicle not in accordance with the law as herein given you constitutes a violation of the law.
“Now, bearing in mind the foregoing instructions, if you believe that in the county of Martin and the state of Texas, on Or about the 26th day of January,. 1924, the defendant was operating a motor vehicle in an unlawful manner, as that term has been hereinbefore defined to you, and that as a result of negligence, in the operation of such motor vehicle, he caused the death of Dollie Wilson, you will find him guilty and assess his punishment at a fine not to exceed the sum of $3,000, or by imprisonment in the county jail not exceeding three years.”

According to the evidence, the driver of a Ford truck, in which he was hauling a pair of mules, was stopped on the road, and, while standing there, the appellant drove his car into the rear end of the truck. Prenlena Pena, the driver of the truck, testified that the appellant’s car was traveling “much fast.” A state’s witness who drove into the highway upon which the collision occurred from a byroad and who was traveling upon the highway at the rate of about 15 or 18 miles an hour, testified that the appellant’s car was going faster than that in which the witness was riding. The highway was 18 feet wide. With the truck standing on the road, there was about 8 feet of road in which to pass. The truck was standing about 80 feet from a curve, and was not visible from the direction in which the appellant approached until after his car had passed the point of the curve a sufficient distance for the lights to reveal the presence of the truck. There was testimony that it would have been impossible for one driving a Studebaker car of the weight of the one in which the appellant was traveling, and at the speed he was 'going, to have stopped the car and prevented the collision after passing the curve. Appellant testified that he was traveling at the rate of about 18 or 20 miles an hour; that the lights were burning, but that there was no tail light upon the truck. Both the appellant and his sister testified that efforts were made to avoid the accident after rounding the curve.

Appellant requested an instruction in substance that, as a predicate for conviction, the jury must find that he was driving his car at a rate of speed in excess of 35 miles per hour, and that there was apparent danger of killing or causing the death of Tlollie Wilson, which could have been avoided by prudence after the danger arose. See Hoffman v. State, 85 Tex. Cr. R. 11, 209 S. W. 747; Worley v. State, 89 Tex. Cr. R. 393, 231 S. W. 391; Gribble v. State, 85 Tex. Cr. R. 52, 210 S. W. 215, 3 A. L. R. 1096; Haynes v. State, 88 Tex. Cr. R. 42, 224 S. W. 1100; Id., 84 Tex. Cr. R. 6, 204 S. W. 430; Steen v. State, 88 Tex. Cr. R. 256, 225 S. W. 529; Hampton v. State, 92 Tex. Cr. R. 443, 244 S. W. 525; Harr v. State, 98 Tex. Cr. R. 4, 263 S. W. 1057;

We find no cogent evidence to the effect that the appellant, at the time of the collision, was traveling at a rate of speed of 35 miles an hour. This being true, there was no warrant for the submission of that issue to the jury. The charge is faulty in failing to state that there was apparent danger of death resulting from the unlawful act. See Steen v. State, 88 Tex. Cr. R. 256, 225 S. W. 529. For these reasons, a reversal of the judgment must result.

We will add that it is quite doubtful whether that part of the charge which implies that the appellant might be guilty though he was not traveling at a rate of speed beyond 35 miles an hour would properly be the basis of a criminal prosecution. In other words, that part. of section 1, c. 155, Acts of the 38th Legislature, which attempts to declare as a penal offense in these words:

“Every person operating or driving a motor or other vehicle upon the public highways of this state, shall operate or drive same in a careful and prudent manner, * * * and any person violating any provisions of this section shall be deemed guilty of a misdemeanor,”

—is of such an indefinite nature as renders it extremely doubtful whether it complies with the law demanding a certain degree of certainty in the definition of offenses. See article 3 of the Penal Code; also Parroccini v. State, 90 Tex. Cr. R. 320, 234 S. W. 671.

For the reasons stated, the judgment is reversed and the cause/remanded. 
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     