
    EBBS v. STATE.
    (No. 9131.)
    (Court of Criminal Appeals of Texas.
    Dec. 16, 1925.
    Rehearing Denied Feb. 10, 1926.)
    1. Criminal law <&wkey;365( I) — Proof that other persons were injured in prosecution for unlawfully driving automobile held admissible as res gestae.
    In prosecution for unlawfully driving a motor vehicle, colliding with and causing injury to named person, proof that other parties were injured held admissible as res gestte.
    2. Criminal law <&wkey;829(I)- — Refusal of requested special charges not error, where fully covered by court in main charge.
    Refusal of requested special charges, held not error, where, in so far as they were in conformity with the law, they were fully covered by court in main charge.
    On Motion for Rehearing.
    3. Criminal law <&wkey;l 169(1)— Any error in’admission of evidence as to identity held harmless, where no issue relative thereto.
    In action for unlawfully driving an automobile and colliding with and accusing injury to another,, any error in permitting witness to testify that about a week after collision sheriff telephoned him to come there, as he thpught he had the guilty party, in that such testimony was hearsay, held harmless, where there was no issue relative to defendant’s identity.
    4. Automobiles <&wkey;>330 — Driver not entitled to acquittal because he could not by ordinary care prevent collision after discovery of danger.
    In prosecution for unlawfully driving an automobile, and colliding with and injuring another, defendant was not entitled to an acquittal because he could not by ordinary care prevent collision after danger was discovered by Mm, since it might have been defendant’s gross negligence that brought about collision.
    5. Automobile® <&wkey;>330 — Charge directing acquittal if defendant’s oar collided with another by accident or without intent held properly refused.
    In prosecution for unlawfully driving an automobile, and colliding with and causing injury to another, charge that, if defendant’s car collided with car driven by another by accident or without any intent, defendant should be acquitted held properly refused.
    6. Automobiles &wkey;>339 — Charge requiring finding of gross negligence as sole cause of collision in order to convict held properly refused.
    In prosecution for unlawfully driving an automobile, and colliding with and causing injury to another, charge defining “gross negligence,” though proper, held properly refused, where it required jury to find that gross negligence was sole cause of collision in order to convict.
    7. Criminal law &wkey;>l038(3), 1056(1) — Error not predicable on omission in main charge, in absence of proper exception and submission of special charges.
    Error was not predicable on omission in main charge in misdemeanor prosecution for unlawfully driving a motor vehicle, in absence of exception calling court’s attention thereto and submission of correct special charges to cure such omission.
    Commissioners’ Decision.
    Appeal from Rockwall County Court; J. W. Reese, Judge.
    Bob Ebbs was convicted of unlawfully and with gross negligence driving a motor vehicle on a state highway, and colliding with and causing injury to another, and he appeals.
    Affirmed.
    H. M. Wade, of Rockwall, for appellant.
    Carl G. Miller, Co. Atty., of Rockwall, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

-Appellant was .convicted in the county court of Rockwall county for the offense of unlawfully and with, gross negligence driving a motor vehicle upon a highway of the state, colliding with and causing injury to W. E. Goodman, and his punishment assessed at a fine of $100.

The facts show that appellant, while attempting to pass the alleged injured party' on a public highway in Rockw.all county, permitted the car in which he was riding to collide with the truck in which the alleged injured party was riding, overturning the truck, and seriously injuring the alleged injured party.

By bill of exception No. 1 appellant complains at the court’s action in refusing to quash the complaint and information. The complaint and information is in substantially the language of the statute, and the motion to quash was properly overruled. The record discloses that Miss Nealy Govey and Mrs. S. W. Govey were riding in the ear with Goodman, the alleged injured party, and that they also received injuries in the collision.

By bill of exception No. 2 appellant complains of the court’s action in permitting the state to prove that these parties were also injured. This testimony was clearly a part of the res gdstas, and, as such, was admissible. Crews v. State, 34 Tex. Cr. R. 533, 31 S. W. 373; Lee v. State, 72 Tex. Cr. R. 237, 162 S. W. 843. The same question is raised in a little different form by bill of exception No. 3, and our observations in regal'd to bill No. 2 disposes of same against the appellant’s contention.

Bill of exception No. 4 complains of the court’s action in permitting a witness to testify that about a week after the collision he had a conversation with the sheriff in which the sheriff told him over the telephone that he thought the man that hit Goodman was there. This witness was an eyewitness to the collision, and it seems that there had been some difficulty in identifying the appellant as the man who caused the collision. This bill shows nothing more than what we have indicated above. It fails to show that the appellant was the party whom the sheriff told witness he thought had caused the collision, and we see no possible harm to the appellant in its admission. The same question is presented in practically the same form in bill No. 5, and the views we have expressed with reference to bill No. 4 disposes of bill No. 5, contrary to appellant’s contention.

We think the testimony is amply sufficient to support the verdict in the event the jury should adopt the ‘state’s theory of the case, and we therefore hold that the court did not err in refusing to peremptorily instruct the jury to acquit the defendant.

We have carefully considered the special charges offered by appellant, and,' so far as they are in conformity with the law, it is our opinion that they are fully covered by the court in his main charge to the jury.

Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.

PER OURIAM. 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.

HAWKINS, J.

There is no merit, we think, in appellant’s renewed contention that the judgment should be reversed because the court permitted a witness to testify that about a week after the collision the sheriff telephoned him to come to Fate, as he thought he had the man located who had hit Goodman. It is true this was hearsay, but it is not every hearsay statement which demands a reversal. There being no issue at the trial relative to the identity of appellant, the admission of the testimony complained of was harmless.

In view of appellant’s motion, we have again examined the special charges requested, and think the court was not in error in-refusing to give them. The first was a request for a peremptory instruction, which was properly refused; the second, in substance, requested the court to instruct the jury that if, because of the position in which appellant found himself at the time of the collision, he could not by the use of ordinary care have prevented the same after the danger was discovered by him he should be acquitted. This is not the law. It may have been the result of gross negligence which placed appellant in the position that brought about the collision. The third charge sought to have the jury instructed that, if appellant’s ear collided with the car driven by Goodman, but that appellant, “by accident or without any intent collided with Goodman’s car, they should acquit him.” This charge was properly refused, as it does not present a correct proposition of law. The fourth special charge sought to have the jury instructed as to the meaning of the term “gross negligence” which would not have been inappropriate, but, coupled with it, there is a concluding sentence by which it was sought to have the jury told that, in order to convict, they must find that the gross negligence, if any, “was the sole cause of the collision.” We think this does not contain a correct proposition of law. There might have been other contributing causes, but, if appellant was. guilty of gross negligence in driving his car against that of the party injured, the law does not demand that his negligence be the sole cause of the accident. This being a misdemeanor case, it was necessary, not only that the omission in the main charge be called to the court’s attention by proper ex-' ception, but that correct special charges be requested to cure the omission. The charges refused not being correct, the’ learned trial judge was not in error in refusing to give them.

The motion for rehearing is overruled. 
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