
    STEWART v. STATE.
    (No. 10952.)
    Court of Criminal Appeals of Texas.
    Oct 26, 1927.
    Rehearing Denied Nov. 23, 1927.
    1.Criminal law <S=»I086(I4), 1090(5) — In absence of bill of exceptions or record showing motion to quash indictment was brought to trial court’s attention, no objections to indictment were presented on review.
    Objections to indictment will not be considered on appeal, where record fails to show that motion to quash was ever brought to court’s attention or any action taken thereon, and where there is no bill of exceptions complaining of overruling of such motion.
    2. Highways <3=^186 — Refusal, to charge as to degrees of automobile driver’s intoxication held not error.
    In prosecution for driving while intoxicated, refusal of court to define degrees of intoxication held not error, where there was no evidence of slight intoxication but sharp conflict as to whether defendant was drunk or sober.
    3. Highways <3=186— Intoxicated condition of accused automobile driver held for jury.
    Evidence of intoxicated condition of defendant, where conflicting as to whether he was drunk or sober, held to make issue for jury in prosecution for driving automobile while intoxicated.
    4. Highways <3=186 — Driving automobile while intoxicated warrants conviction, regardless of effect of drinking on driver’s operation.
    If automobile driver is under influence of intoxicants at time of driving car on public highway, he should be convicted under statute punishing driving of automobile while intoxicated, regardless of whether he did or failed to do any act or thing in operation of automobile which he would not have done but for drinking of liquor.
    5. Highways <3=186 — Acts and conduct of accused automobile driver at time alleged admissible on issue of his intoxication.
    Acts and conduct of defendant accused of driving automobile on highway in intoxicated condition, where occurring at time of alleged offense, may be shown as shedding light on issue of his intoxication.
    6. Criminal law1 <3=363 — Evidence of death of occupant of car struck by accused may be admissible in prosecution for drunken driving, if part of res gestae.
    Testimony as to death of occupant of car struck by defendant may be admissible in prosecution for driving automobile while intoxicated, if part of res gestae showing defendant’s intoxication.
    7. Criminal law <3=783(2) — Charge that jury should not consider evidence of death of occupant of car struck by defendant except as affecting witnesses’ credibility held ample safeguard to defendant accused of drunken driving.
    In prosecution for driving automobile while intoxicated, special charge that jury should not consider evidence showing death of occupant of car struck by defendant or damage to ears except as affecting credibility of witnesses and their testimony as to defendant’s intoxication held to safeguard any right defendant may have had relative to admission of such evidence.
    8. Criminal law <3=1091 (I I) — Bills of exception in question and answer form cannot be considered.
    Appellate court cannot consider bills of exception in question and answer form.
    
      Appeal from District Court, Jefferson County; Geo. C. O’Brien, Judge.
    J. E. Stewart was convicted of driving an automobile while intoxicated, and he appeals.
    Affirmed.
    Rose & Johnson, of Port Arthur, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTTMORE, J.

Conviction for driving automobile while intoxicated; punishment, SO days in the county jail.

The statute, for a violation of which this conviction was had, has been considered and upheld by us in several cases. Nelson v. State, 97 Tex. Cr. R. 210, 261 S. W. 1046; Scoggins v. State, 98 Tex. Cr. R. 546, 266 S. W. 513; Williams v. State, 100 Tex. Cr. R. 50, 271 S. W. 628. We find nothing in Griffin v. State, 218 S. W. 494, in conflict with this view.

Appellant filed a motion to quash the indictment, but, if same was ever brought to the attention of the trial court, or any action taken thereon, the record fails to show same. There is no bill of exceptions complaining of the overruling of such motion.

Appellant argues at length the lack of evidence to show that he was intoxicated at the time of the alleged driving of his ear. .We have gone through the record carefully, and are of opinion that same amply supports the jury’s conclusion of guilt. The issue of intoxication was strongly combated and amply sustained. We would not feel like disturbing the settlement of a fact issue by the jury, if same be supported by the amount of testimony we find in this record.

Appellant excepted to the charge for not defining degrees of intoxication. If there could arise need for such definition in a case of this character, nothing of that kind appears here. The state witnesses testified that appellant was drunk. He and his witnesses said that he was sober and in no sense under the influence of intoxicating liquor. This sharp fact issue being before the jury, we see no need for such charge. Williams v. State, 100 Tex. Cr. R. 50, 271 S. W. 628.

Appellant sought to have the jury told by a special charge that they should acquit “unless he did or failed to do some act or thing in the operation of such automobile that he would not have done but for the drinking of such liquor.” This is not the law. The law does not withhold its forbiddanee until an intoxicated man on the highway kills somebody or wrecks his own or some other car. If he is drunk, or is under the influence of intoxicants, he is forbidden to drive an automobile on a public highway in this state, and the law is violated when he does so drive his car, as much if he keeps the middle of the road as if he wrecks a dozen cars.

Certainly the acts and conduct of the accused at the time specified, in a case like this, become germane as' shedding light on the issue of his intoxication, and the fact that, as a result of his acts, another car. was struck and one of its occupants killed, would not per se render inadmissible testimony of such death if a part of the res gestse of the acts showing his intoxication. The court below gave a special charge telling the jury that they could not consider the evidence in this case showing such death, nor the damage to the cars, etc., except as affecting the credibility of the witnesses and their testimony regarding appellant having driven a car while under the influence of intoxicating liquor. If appellant had any right to such instruction, it was safeguarded by giving same.

The evidence for the state showed that appellant was driving his car 60 or 65 miles an hour on the highway between Port Arthur and Beaumont, and that in quick succession he struck two cars, an occupant of the second car being killed. We find in the testimony of a number of witnesses reference to the death of the boy, and the dead boy, etc., which testimony was mingled and mixed with other testimony developing the res gestm of the accidents. We nowhere find any specific objection made to proof of the fact that the boy was killed.

A number of bills of exception are in question and answer form and hence cannot be considered; bills of exceptions Nos. 5 and 6 being in this form. In them appellant seeks to present his objection regarding his having been formerly charged with drunkenness and having had trouble with officers. We cannot consider these objections in the form presented. Appellant’s counsel present an able and exhaustive brief, which has been examined and considered.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant files a motion for rehearing, formidable in appearance and lengthy in statement, each proposition in which has been carefully considered. The evidence is set out at length in the motion, but, as we view it, the proposition attempted to be supported by the lengthy statement of testimony is not in the case. Nothing in our opinion holds that the only issue of fact before the jury was whether appellant was drunk or not. No witness swore that he was slightly undér the influence of intoxicants, or that he was only to a limited degree affected by liquor. He and his witnesses denied that he had had any intoxicant, or was at all under the influence of liquor, and the state witnesses affirmed that he was drunk. We merely said, there being no testimony raising the issue that he was slightly under the influence of intoxicants, the court did not err in refusing to attempt to define to the jury the issue of degrees of intoxication. Same was not involved in this case, nor do we think it can ever properly be in such a case. Williams v. State, 100 Tex. Cr. R. 50, 271 S. W. 628.

The court told the jury that, if appellant was under the influence of intoxicants at the time he was driving his ear on the public highway, and the jury so found, he should, be convicted. This was the law applicable to the second count in the indictment, under which the trial was had.

The other propositions advanced by ap* pellant were all discussed at length in o-ur former opinion, and, as we think, correctly decided.

Being unable to agree with the contentions ¡made, the motion for rehearing will be overruled. 
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