
    RATLIFF v. STATE.
    (No. 7675.)
    (Court of Criminal Appeals of Texas.
    May 30, 1923.
    Rehearing Denied Oct. 24, 1923.)
    1. Indictment and information &wkey;>'l37(6) — Information charging aggravated assault in language of statute held good, against motion to quash.
    An information charging aggravated assault in the language of Acts 1917, e. 207, § 35 (Vernon’s Ann. Pen. Code Supp. 1918, art. 1022a), declaring that the driver of a motor vehicle upon a public highway who willfully or with gross negligence collides with or causes injury to any other person upon the highway is guilty of aggravated assault, held good against motion to quash.
    2. Assault and battery <&wkey;95 — Cause of collision of cars held for jury.
    Whether the blinding lights of plaintiff’s car driving slowly on the Tight-hand side of the road and in the opposite direction from which defendant was driving was the cause of defendant’s head-on collision, or whether defendant was at fault or the car he was driving became unmanageable, held questions of'fact for the jury on trial for assault by grossly negligent driving.
    Appeal from Delta County Court; Joel H. Berry, Judge.
    Joe Ratliff! was fined for aggravated assault, and lie appeals.
    Affirmed.
    Patteson, Wells & Patteson, of Cooper, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for aggravated assault; punishment fixed at a fine of §25.

The information charges an aggravated assault, using the terms prescribed by the Legislature in the Acts of 1917, c. 207, § 35 (Vernon’s Ann. Pen. Code Supp. 1918, art. 1022a), in which it is declared that the driver of a motor vehicle upon a. public highway, who “shall willfully or with gross negligence, collide with, or cause injury to any other person upon such • highway, he shall be guilty of aggravated assault.” We fail to discern any merit in the motion to quash the information. It is in line with the statute as construed by the opinion in the case of Tarver v. State, 83 Tex. Cr. 275, 202 S. W. 734, written by Presiding Judge Davidson. See, also, Worley v. State, 89 Tex. Cr. 393, 231 S. W. 391.

The alleged injured party, Taylor, testified that he was traveling in an automobile upon a public road described-in the pleading; that he was going east, and, on observing a car approaching, he moved his car to the south, or the right-hand side of the road as far as possible; that appellant’s car was coming from the west, and just beforfe reaching Taylor'he turned into his (Taylor’s) car, which at the time was traveling not more than 8 miles an hour. Appellant’s car was going at the rate of 15 or 20 miles an hour. Taylor was injured in the collision. There were several other persons in the car. After the accident, appellant came to Taylor and said: “Of course, I know I am to blame for it all.” The witness said that as soon as appellant came he smelled whisky; that there was no whisky in his car, and he smelled none until after the accident and after appellant came to his car. He observed, however, no conduct indicating that appellant had been drinking whisky. The accident occurred at night. Other occupants of the car testified and described the occurrence in substantial agreement with the testimony of Taylor.

Appellant testified admitting the collision, but controverting the negligence. He saw Taylor’s ear, and took a position on the road which would enable him to pass without collision. He was driving a Ford car, and in high gear the lights on his car were less brilliant than if in neutral or low gear. As he approached Taylor’s car, the lights thereon blinded him, and in the endeavor to shift •the gear or put it in neutral his car swerved suddenly and caused the collision. If the jury had accepted his theory, they might have concluded that there was no negligence, or at least no gross negligence. There is nothing in the record to suggest that his conduct was willful. The state’s witnesses described the surroundings and the physical results of the collision upon the ground and the cars, also the width and character of the road at the point of collision, and .the jury would have been justified in concluding that, unless there was fault on the part of the driver, or the car he was driving became unmanageable for some reason, there would have been no difficulty in passing without injury. The evidence renders the nature and cause of the collision questions of fact. On the whole case we do not feel warranted in overturning the verdict of the jury.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant calls attention to an error in our opinion wherein we said “that appellant’s car was coming from the west”; it should have read that appellant’s car was coming from the east.

We observe nothing in the motion leading us to believe our former disposition of the case to have been erroneous. The motion for rehearing is overruled. 
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