
    WILLIAMS v. STATE.
    (No. 9764.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1926.)
    1. Indictment and information &wkey;>!76.
    Law contemplates that offense shall be anterior to presentment of indictment.
    2. Automobiles <&wkey;355 — Testimony showing nothing as to actions of accused automobile driver after collision held insufficient to show offense of failure to stop and render aid (Pen. Code 1925, art. Ü50).
    In prosecution of automobile driver under Pen. Code 1925, art. 1150, for failure to stop and render aid after collision, testimony showing collision, but nothing as to conduct of accused thereafter, held insufficient, as essence of the offense is failure to stop and render aid.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    Fred Williams was convicted under Pen. Code 1925, art. 1150, and he appeals.
    Reversed and remanded.
    Allen H. Hamiter, of Lewisville, Ark., and J. T. Kelly, of Dallas, 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 prosecution is based upon article 1150, Penal Code of 1925, which denounces as an offense the failure of one driving or controlling an automobile which comes in collision with, another to stop and render aid. The'' punishment is assessed at confinement in the penitentiary for a period, of five years.

The indictment was filed April 17, 1925, and charges the offense to have been committed on the 5th of April of that year. The date of the alleged offense, as shown by the statement of facts, is May 5, 1925. This was subsequent to the filing of the indictment. The indictment avers, and the law contemplates, that the offense shall be anterior to the presentment of the indictment. See Estrada v. State, 226 S. W. 685, 88 Tex. Cr. R. 333; Branch’s Ann. Tex. P. C. p. 231.

From the statement of facts we learn the following: Appellant, while driving a Cadillac automobile upon one of the streets of Dallas, collided with a motorcycle, the driver of which was injured.' Witnesses described the collision, but are silent touching the conduct of the appellant immediately thereafter. None of these witnesses said that the appellant failed to stop his car or that he failed to render aid. The procedure pursued by the state’s counsel in developing the case seems to have been to go no further than to show that the collision took place, that the appellant was driving the automobile, and that the rider of the motorcycle was injured. The essence of the offense is the failure to stop and render aid. The prosecution might have been upon other phases of the law, such, as aggravated assault or negligent homicide, but the phase of the law selected, and that submitted to the jury, and upon which the verdict rests, is that which denounces as an offense the failure to stop and render aid to the injured party. See Stalling v. State, 234 S. W. 914, 90 Tex. Cr. R. 310; Id., 243 S. W. 990, 92 Tex. Cr. R. 354; Scott v. State, 233 S. W. 1097, 90 Tex. Cr. R. 100, 16 A. L. R. 1420.

Counsel for the state concedes that the offense charged was not proved. This is obviously true.

The judgment is reversed., and the cause remanded. 
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