
    INNESS v. STATE.
    (No. 10351.)
    Court of Criminal Appeals of Texas.
    Dec. 15, 1926.
    Rehearing Denied April 27, 1927.
    1. Municipal corporations <3=3707 — Indictment for drunken driving on “public street” held not invalid in charging that defendant drove on “public square.”
    Indictment for driving automobile on public street while intoxicated held not invalid in charging that defendant drove on public square, since that part of public square' used by the public to move about on is “public street.”
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Street.]
    On Motion for Rehearing.
    2. Criminal law <3=3814(17) — In prosecution for drunken driving, charge on circumstantial evidence held not required, where witnesses stated that accused was drunk.
    In prosecution for driving automobile on public street while intoxicated, state’s evidence held not solely circumstantial, requiring charge on circumstantial evidence where witnesses stated that accused was drunk.
    3. Criminal law >3=3784(1) — Charge on circumstantial evidence is required, where state relies solely on such evidence.
    Charge on circumstantial evidence is required in criminal case, where state relies solely on that character of evidence to secure conviction.
    4. Criminal law <3=^457 — Nonexpert witness may testify that accused was intoxicated while driving automobile.
    Nonexpert witness may testify that accused was intoxicated at certain time and place, in prosecution for driving automobile on public street while intoxicated.
    Commissioners’ Decision.
    Appeal from District Court, Shelby County; R. T. Brown, Judge.
    Roy Inness was convicted of driving an automobile on a public street while intoxicated, and be appeals.
    Affirmed.
    Sanders & Sánders, of Center, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for tbe State.
   BETHEA, J.

The appellant was convicted in the district court of Shelby county of unlawfully driving an automobile upon a public street while under tbe influence of intoxicating liquor, and bis punishment assessed at a fine of $350.'

The record in this case discloses that tbe appellant drove an automobile from tbe direction of Shelbyville street in tbe town of Center to a point in front of the courthouse, and there stopped bis car. He stopped bis car on the public square across the street just opposite tbe courthouse on tbe East side of the square. At tbe time be was driving said car be was drunk.

Tbe charging part of tbe indictment in tbis case reads as follows:

“Did then and there unlawfully while under the influence of intoxicating liquors drive and operate an automobile upon a public street within the limits of an incorporated town, to wit, the public square, within the limits of the incorporated town of Center, Shelby county, Tex., against the peace and dignity. of the state.”

Appellant’s first bill of exceptions complains that tbe trial court erred in not quashing the above indictment. Tbe term public square is' usually applied to land on which a courthouse is erected. In this state there are few county sites in which there is not set apart a certain block, part, or parcel of land designated as tbe “public square,” and they are generally intended as sites for tbe erection of courthouses. That part of a public square used by tbe public to move about on, either on foot or in automobiles, buggies, wagons, and other vehicles, constitutes, and is, a public highway. Bouvier defines a “street” as “a public thoroughfare or highway in a city or village.” It follows, therefore, that a public street or public square are one and tbe same, being used interchangeably and synonymously. We therefore hold that tbe learned trial judge was correct in overruling appellant’s motion to quash said indictment.

Appellant’s bill of exceptions No. 3 is nothing more nor less than a repetition of his objections and exceptions to tbe court’s main charge. We have carefully reviewed said charge, and find tbe same a correct enunciation of the principles of law involved in this case as well as a full and complete submission of all the issues raised by the facts.

There being no errors in the record, and the facts being amply sufficient to support the verdict, the judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

A deputy sheriff testified that he saw the appellant driving his automobile upon the street. Quoting, the witness, he said:

“I went out to his, car. Roy was driving it, and at that time he was drunk.”

On cross-examination he said:

“X did not know what he was drinking. X judge he was drunk from hjs appearance.* * * and his breath. He had no whisky there, but had some empty bottles.” ■-

On redirect examination he said:

“I could tell the contents of the bottles from the smell. It smelled like ‘jake.’ These were soda water bottles, and had had ‘jake’ or Jamaica ginger in them. When he drove up there and stopped his car, he fell over on the steering wheel, and I could see that he was drunk. At that time I smelled his breath. Erom my experience as an officer, I would say he had been drinking ‘shinney.’ ”

' Another witness, Wilson, testified that he saw the appellant, and said that he was drunk. He said:

“Of my own knowledge, I could not say he was actually ‘dog drunk,’ but he was drunk; but I could tell he had been drinking pretty heavily. I could smell his breath, and tell he was drinking; but I don’t reckon I could tell exactly what he had been drinking.”

In his motion for rehearing, appellant earnestly contends that the case is one which depends upon circumstantial evidence alone. Circumstantial evidence is defined thus:

“It is evidence of more facts than one, which, in combination, create the presumption that still another fact exists.”

See Bishop’s New Grim. Proc. (4th Ed.) p. 672, § 1073.

A charge on circumstantial evidence is required when the state relies solely upon that, character of evidence to secure a conviction. Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330, and other eases collated in 4 Mieliie’s Encye. Digest of Tex. Crim. Rep. p. 502.

In the present case, the gist of the offense was the drunkenness of the accused while he was driving an automobile. The mere fact that he was driving an automobile would not take the case out of the law of circumstantial evidence. In the present instance, however, we do not think that the drunkenness was proved by circumstances alone. ’ In'Underhill’s Crim. Ev. (3d Ed.) § 278, it is said:

“A nonexpert witness may testify that the accused or some other person was intoxicated on a given date.”

This announcement is supported by many authorities collated in the note. Among them is the case of Commonwealth of Pennsylvania v. Eyler, 217 Pa. 512, 66 A. 746, 10 Ann. Cas. 786. This case is also reported in 11 L. R. A. (N. S.) page 639, where will be found an exhaustive note, from which we quote:

“Since drunkenness is of such common occurrence that its recognition requires no peculiar scientific knowledge, and since it is practically impossible to describe the minute and peculiar appearance of a person, his acts, gestures, looks, and other indications of a state of sobriety, or of intoxication, thus making an expression as to whether or not a person is intoxicated, in effect a statement of a fact rather than a mere opinion as to the existence of a fact, it has been held as a general rule, without a single decision found to the contrary, that a witness not an expert may give his opinion as to whether or not a person is intoxicated, it naturally being understood that he had the opportunity to observe the facts upon which he bases his opinion.”

The. statement by each of the state’s witnesses . that the appellant was drunk is a statement of fact. The correctness of the conclusion or statement in the present case ’is tested by -cross-examination, and the surrounding facts, confirmatory of the main fact, were properly developed in order that the jury might determine the issue, that is, whether the presumption of innocence ■ was overcome, but the development of the confirmatory circumstances did not, in our opinion, convert the present case into one depending alone upon circumstantial evidence.

The motion is overruled. 
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