
    VAN ARSDALE v. STATE.
    (No. 7102.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1922.
    Rehearing Denied April 4, 1923.)
    1. Homicide <§=3138 — Indictment for negligent homicide in second degree caused by driving automobile at excessive speed while intoxicated held sufficient.
    In a prosecution for negligent homicide in the second degree based on the killing of a woman passenger in defendant’s automobile through its overturning, an indictment under Vernon’s Ann. Pen. Code 1916, arts. S20h, S20o, and Vernon’s Ann. Pen. Code 1922, art. 822c, held sufficiently to charge a homicide resulting from defendant’s carelessness in driving at an excessive speed while intoxicated, the apparent danger of causing death, lack of intent to kill, and that at the time of the homicide defendant was engaged in an unlawful act.
    2. Homicide <©=3289 — Instruction in prosecution for negligent homicide in second degree held not erroneous as failing to define unlawful act. .
    In a prosecution for negligent homicide in the second degree caused by the overturning of an automobile driven by defendant at an excessive speed while intoxicated, instructions that, if defendant was either driving the car on the highway at a rate of speed greater than 25 miles an hour, or was driving the car on the highway when intoxicated, he would be guilty of negligent homicide in the second degree, held not erroneous as failing to define an unlawful act; both of the acts specified being unlawful, although not expressly so stated in the instructions.
    3. Homicide <©=3340(1) — Instruction as to apparent danger in negligent homicide in second degree held not erroneous.
    In a prosecution for negligent homicide in the second degree, through the overturning of an automobile on deceased while being driven by defendant at an excessive speed while intoxicated, an instruction on the question whether the danger was apparent, and would have been known to defendant by the use of that degree of care which a man of ordinary prudence would have used under like circumstances, held not injurious to defendant.
    4. Homicide <©=3340(3) — Error In instruction favorable to appellant will not reverse.
    In a prosecution for negligent'homicide in the second degree, an instruction as to apparent danger, while not technically correct, could not be availed of by defendant, since it would be favorable to him as requiring the state to show not only that the danger was apparent, but also that it would have been known to defendant had he used that degree of care which a man of ordinary prudence would have^ used under like circumstances.
    5. Criminal law <§=>789(3) — Failure to charge on law of reasonable doubt as between negligent homicide of first and second degrees held not error.
    In a prosecution for negligent homicide, it was not fundamental error to fail to charge on the law of reasonable doubt as between negligent homicide of the first and second degrees.
    6. Homicide <©=>250 — Conviction of negligent homicide in second degree sustained.
    In a prosecution for negligent homicide in the second degree based upon the act of defendant in driving an automobile at an excessive rate of speed while intoxicated, and overturning it, thereby killing deceased, evidence held to sustain a conviction.
    On Motion for Rehearing.
    7. Homicide <§=>127 — Indictment for negligent homicide in second degree need only aver that danger was “apparent”; “obvious.”
    In a prosecution for negligent homicide in the second degree, an indictment need not aver that danger of death was apparent to the accused, an averment that the danger was apparent being sufficient; the word “apparent” being synonymous with “obvious.”
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Apparent —Obvious.]
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.
    J. E. Yan Arsdale was convicted of negligent homicide, and lie appeals.
    Affirmed.
    Rasbury, Adams, Stennis & Harrell, of Dallas, for appellant'.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Dallas county of negligent homicide, and his punishment fixed at one year and one day in the county jail.

Miss Grace Rodgers was killed in an automobile accident on a public highway north of Dallas, in Dallas county. Appellant was driving tile car. ■ The indictment contained six counts, the first, fourth, and sixth of which were abandoned. The third and fifth count's charge negligent homicide of the second degree, and the second negligent homicide of the first degree. The verdict was on the form submitted as suitable in the event the jury convicted under the third and fifth counts. We will therefore confine our discussion to such questions as arise under ,the law and facts applicable to negligent homicide of the second degree.

By the terms of articles 820h and 822c, c. 1, tit. 13, Penal Code (Vernon’s Complete Texas Statutes 1920) it is made a misdemean- or for an intoxicated person to drive an automobile upon any public highway of this state. By the terms of article 820» of said chapter it is made unlawful for any person to drive an automobile on such highway at a greater rate of speed than 25 miles per hour. It will thus follow that one embraced in either class just mentioned would be engaged in an unlawful act. The third count of this indictment charges that on the date named appellant was engaged in an unlawful act, i. e., the driving of an automobile on a public highway while he was intoxicated, and that in so doing, without apparent intention to kill, but while danger of death was apparent, appellant negligently and carelessly overturned said automobile, and thereby caused the death of Grace Rodgers. Count No. 5 charges that appellant was engaged in an unlawful act, i. e., driving an automobile at a rate of speed greater than 25 miles per hour on such highway, and that so doing he killed Grace Rodgers by negligently and carelessly overturning said automobile upon her, there being no apparent intention to kill, but apparent danger of causing death.

In his motion to quash tbe indictment appellant makes three similar grounds of attack on the third and fifth counts: One that there is no such crime as an unlawful act, and another that, while said count charges that appellant was intoxicated while driving a car on a highway, it also charges that Grace Rodgers was killed by the overturning of said automobile, which latter is not an unlawful act. The other ground is that it fails to allege that the danger of killing Grace Rodgers was apparent to the defendant. We uphold neither of said contentions. The two counts are identical, save that one charges intoxication, and the other excessive speed, as that which made the act of appellant unlawful. A quotation of one count will suffice. Count No. 3 is as follows:

“And the grand jurors aforesaid, upon their oaths aforesaid, do further present in and to said court at the said term thereof, that one J. E. Van Arsdale on the 22d day of May, in the year of our Lord 1921, with force and arms, in the county and state aforesaid, was in the performance of an unlawful act, in this, to' wit: ‘That the said J. E. Van Arsdale was
unlawfully ■ driving an automobile upon and .along the Dallas and Plano Pike, a public highway in said county and state, while intoxicated and the said J. E. Van Arsdale did then and there, while unlawfully driving said automobile while so intoxicated on said highway, kill Grace Rodgers by negligently and carelessly overturning said automobile upon and against the body and person of said Grace Rodgers, who was then and there in and occupying said automobile as a passenger therein; there being no apparent intention upon the part of the said J. E. Van Arsdale to cause the death of the said Grace Rodgers; and there being then and there apparent danger of causing the death of the said Grace Rodgers by overturning said automobile upon and against the person and body of the said Grace Rodgers, which danger would have been known to the said J. E. Van Arsdale and avoided by Mm if he had used that degree of care and caution which a man of ordinary prudence would use under like circumstances.’ ”

The elements of negligent homicide in the second degree thus appear to be charged, i. e., a homicide by the act of appellant; that such homicide resulted from his carelessness and negligence'; the apparent' danger of causing death; the lack of an intent to kill; and that at the time of such homicide appellant was engaged in an unlawful act. The count under consideration is in accord with approved forms. Wilson, Criminal Forms, 508; Anderson v. State, 27 Tex. App. 177, 11 S. W. 33, 3 L. R. A. 644, 11 Am. St. Rep. 189; Talbot v. State, 58 Tex. Cr. R. 324, 125 S. W. 906. We do not think 'that part of said count, wherein occurs the following:

“And there being then and there apparent danger of causing the death of the said Grace Rodgers by overturning said automobile upon and against the person and body of the said Grace Rodgers, which danger would have been known to the said J. E. Van Arsdale and avoided by him if he had used that degree of care and caution which a man of ordinary prudence would use under like circumstances,”

imposes any unfair or illegal burden on the accused, nor is there any departure from those rules of pleading which provide that such things as are necessary to prove must be alleged. It is alleged that the danger of causing the death of Grace Rodgers was then and there apparent. TMs was a necessary allegation. The further statement that such danger would have been known to appellant if he had used that degree of caution and care which a man of ordinary prudence would use under like circumstances is in the exact language of Mr. Willson’s Grim. Forms, above referred to, which has uniformly received the sanction of this court. No exception was taken to the introduction or rejection of any testimohy on this trial. Bill of exceptions No. 1 is to the overruling of the motion to quash, which we have above discussed.

The second bill of exceptions presents to us the exceptions taken to the charge of the trial court. We do not set out the exceptions in full, but present our views of same. While the charge of the court.does not in express terms state to the jury that the driving of a car on a highway by one intoxicated is an unlawful act, nor does it tell the jury that the driving of a car on the highway at' a rate of speed greater than 25 miles an hour is an unlawful act, still said charge does tell the jury that, if they believe beyond a reasonable doubt that appellant was doing either of those things at the time he overturned said automobile in the manner as described in the indictment, he would be guilty of negligent homicide in the second degree. The charge further sets forth in this connection the other ingredients of negligent homicide, and we think it' sufficient. ■ We think the complaint that the charge on the first three pages thereof fails to define an unlawful) act is without merit.

The exception to that part of the charge submitting the proposition of apparent danger seems to mistake the language of said instruction. There is no statement of the law applicable to a situation in which the danger was not' apparent, but on the contrary the charge as applicable to both counts submits the law in reference to a case in which the danger was apparent. We do not deem it injurious to appellant to tell the jury that, if the danger was apparent, and would have been known to appellant by the use of that degree of care, etc. We see no error in such charge, but, if not technically correct, .the error .therein would be favorable to appellant as requiring the state t'o show not only that the danger was apparent, but also that it was such as would have been known to the appellant had he used that degree of care and caution which a man of ordinary prudence would have used under like circumstances.

We could not sustain an exception to the charge upon the ground that there was no evidence at the time of the accident appellant was intoxicated, or that he was driving at a greater rate of speed than 25 miles per hour, and that therefore the submission of such issues to the jury was erroneous. There was evidence both of the fact that appellant' was intoxicated and that he was driving at such excessive speed at the time the car was overturned. In the charge the trial court gave pointed instructions that, unless the jury believed beyond a reasonable doubt that at the very time of the accident' appellant was intoxicated, and that his intoxication was the cause of the accident as charged in the third count, or that unless they so believed that he was driving the car at a greater rate of speed than 25 miles per hour at the very time of the accident, as charged in the fifth count, they should acquit him.

There are other exceptions to the charge which we do not discuss, but in none of which do we find matters complained of that appear to us to present error. Some of the matters excepted to as being omissions in the presentation of the law seem to be covered by the main charge. It was not fundamental error to fail to charge on the law of reasonable doubt as between negligent homicide of the first and second degrees. Powell v. State, 28 Tex. App. 393, 13 S. W. 599; Little v. State, 39 Tex. Cr. R. 662, 47 S. W. 984; Edens v. State, 41 Tex. Cr. R. 522, 55 S. W. 815.

It appears beyond controversy that appellant was driving the car on the occasion in question, and that Miss Rodgers was an occupant of said car, and at a point on the Dallas and Plano Pike near the home of Mr. Mcllvane there was a sharp curve, and here appellant undertook to pass another car going in the same direction, and overturned his car, and Miss Rodgers was killed. Mcllvane was standing in his front door, and saw the whole occurrence, and went at once to the help of the party. H'e testified that appellant’s car was running 35 miles an hour or better when it hit' the curve, and that it turned over twice. He further stated that after he got to the car appellant drank the remaining whisky in a phial, which he set down' by the side of the car. He further said that appellant was pretty drunk; that he would not talk or make any statement, or tell him anything about who the parties were or anything about it. Mr. Hood swore that he went out to the scene with another officer and brought appellant back to Dallas, and that in his best judgment he had been drinking. The accident occurred not far from the town of Richardson, and a witness who went from said town out to the place of the accident said that it was his judgment that appellant was drinking; that he smelled whisky on his breath. This witness said he asked appellant several questions, but he refused to answer. We might state that the testimony of the defense was in conflict with that above detailed, but reconciliation of conflicting testimony is for the jury. We reverse on the facts only when there are none to support the judgment, or those in support thereof are so slight as to lead us to conclude that the) judgment does not reflect a fair and unbiased decision. We are not led to believe that this case should be reversed on the facts.

Finding no error in the record calling for a reversal, an affirmance is ordered.

On Motion for Rehearing.

MORROW, P. J.

The indictment is copied in the original opinion. In the motion for rehearing appellant’s counsel clearly states his attack upon the indictment in these words:

“May we reason with the court on the indictment? It charges that ‘ * * * There being then and there apparent danger of causing the death of the said Grace Rodgers by overturning said automobile upon and against the person and body of the said Grace Rodgers.’ This wholly fails to charge that it was apparent to any specific person, but the law requires that it charge that the danger must be apparent to the appellant.”

The question arises: Does the law require that the indictment aver that the danger was apparent t'o the accused, or is it enough that the danger be apparent? If we properly comprehend the construction given our statute on negligent homicide in the previous decisions of this court, it is not necessary that the indictment aver that the danger of death appear to the.accused. The form of indictment for this offense is suggested by Judge Willson in his Criminal Forms (4th Ed.) p. 265, form 508, part of which reads thus:

“ * * * There being then and there an apparent danger of causing the death of the said C. D. by so throwing and pushing him against and upon said machinery, which danger would have been known to the said A. B. if he had used that degree of care and caution which a man of ordinary prudence would use under like circumstances.”

This form of indictment was used in the case of Morris v. State, 35 Tex. Cr. R. 317, 33 S. W. 539. What we deem the correct analysis of the conclusion reached by the court is stated by Mr. Branch in these words:

“Where deceased was riding in defendant’s vehicle and defendant was driving his team in a furious and rapid manner he was' charged with notice that his acts did endanger the life of the deceased, and it is not necessary to hinge his' guilt on his consciousness that his acts were endangering the life of deceased.” Branch’s Ann. Tex. Penal Code, § 1896.

Many decisions are cited by Judge Willson in his Criminal Forms in which the same form of indictment has been used.

In the statute, it is said that—

“There must be an apparent danger of causing the death of the person killed or some other.”

• It is conceived that, as used in the statute, the word “apparent” is synonymous with “obvious.” See Century Dictionary. Such is the necessary inference from the decisions of this court. See Bertrong v. State, 2 Tex. App. 161, stating the circumstances under which a conviction may take place. The examples selected by Judge Willson in preparing his forms are illustrative of this view. In other words, in the eyes of the law, the act of the accused being unlawful and the danger obvious, he is held responsible for the result in bringing about or in failing t'o avert the danger. The language used in the case of Worley v. State, 89 Tex. Cr. R. 393, 231 S. W. 391, in conflict with this view, was not necessary in deciding the questions, and will be modified to accord with the conclusion expressed in this opinion.

The other matters mentioned in the motion for rehearing were properly disposed of in the original opinion. A further discussion of them is deemed unnecessary.

The motion is overruled. 
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