
    STALLING v. STATE.
    (No. 6366.)
    (Court of Criminal Appeals of Texas.
    Nov. 23, 1921.)
    I.Criminal law <&wkey;31 — Reliance on alibi does not bar other defenses.'
    That accused relied on evidence of alibi did not deprive him of the right to have submitted to the jury any other defensive theory sanctioned by law which arose from the evidence.
    2. Municipal corporations &wkey;>707 — Whether automobile driver knew of. accident held for the jury.
    In .prosecution for violating Vernon’s Ann. Pen. Code Supp. 1918, art. 820m, requiring automobile driver, striking a person, to stop and render necessary aid, whether accused knew of the collision held for the jury.
    3. Municipal corporations <&wkey;707 — Motorist’s ignorance of injury is defense to failing to aid.
    • In prosecution for violating Vernon’s Ann. Pen. Code Supp. 1918, art. 820m, requiring automobile driver, striking a person, to stop and render necessary aid, accused’s lack of knowledge of the collision is a defense, although the word “knowingly” is not included in the act; and where the evidence makes the question of accused’s knowledge of the accident one for the jury, it is incumbent upon the court, in response to a proper exception, to instruct that want of knowledge of the accident would excuse failure to stop and render aid.
    4. Criminal law <@=>1037(2) — Improper language of counsel may be reversible without written request to charge to disregard.
    Where the language used by counsel is obviously of a nature to impair the rights of accused or to improperly prejudice his case before the jury, a reversal frequently follows from it, although there was no written request to charge the jury to disregard it.
    5. Criminal law <&wkey;l037(2) — Improper language of counsel held reversible error.
    In prosecution for violating Vernon’s Ann. Pen. Code Supp. 1918, art. 820m, requiring automobile driver, striking a person, to stop and render necessary aid, where state’s counsel said, “This defendant is guilty of one of the most damnable murders ever committed in D. county; his act in murdering [decedent] by running over her with an automobile shows him to be a man regardless of social duty,” and, pointing his finger at the defendant, said, “There sits the man who committed this murder; I know he is the identical man who did it,” and the language was objected to, and the court verbally requested to instruct the jury to disregard it, but the court took no notice of the objection, held that, although there was no written request to instruct to disregard the language, it constituted reversibly improper argument, as tending to impress the jury that it was their duty to punish for the death, rather than for the failure to comply with the statute.
    Appeal from Criminal District Court, Dallas Comity; C. A. Pippen, Judge.
    W. E. Stalling was convicted of violating the statute requiring an automobile driver, striking a person, to stop and render aid, and appeals.
    Reversed and remanded.
    W. W. Nelms, of Dallas, for appellant.
    R. H. Hamilton, Ásst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant is sentenced to confinement in the penitentiary for a period of five years for violating the statute requiring that when an automobile strikes a person the driver shall stop and render the necessary aid. See article 820m, Supplement to Vernon’s Penal Code. The validity of the statute, with certain interpretations and limitations, has been sanctioned by this court in the case of Scott v. State (No. 5965) 233 S. W. 1097, not yet [officially] reported.

In the instant case, Mrs. Patterson, while walking in company with her husband upon one of the streets of Dallas, Tex., at nighttime, was struck by an automobile and killed. The driver of the car failed to stop, and the appellant was charged with the offense. Circumstances were relied upon by the state to identify him. He denied his identity- and introduced evidence tending to prove an alibi. The jury settled the conflicting theories against the appellant, and determined that he was the driver of the car, and that he failed to stop and render aid after the car struck the deceased.

In addition to an attack upon the validity of the law upon which the prosecution is founded, several complaints are directed against the rulings of the trial judge on questions of practice. In one of his criticisms of the charge of the court, the appellant contends that there was error in failing to submit to the jury appellant’s knowledge of the collision. The learned trial judge, in commenting upon the bill of exceptions, states that “the statute under which this prosecution was had does not make knowledge or intent a part of the offense, and the evidence does not raise -the issue of either.” It is true that the appellant relies upon evidence of alibi. This, however, did not deprive him of the right to have submitted to the jury any other defensive theory sanctioned by law which arose from the evidence. The night was dark and cloudy. He admitted, in his testimony, that on the same evening he was driving an automobile which the circumstances, as determined by the jury, identified as the one which caused the injury. It was undisputed that the car which struck Mrs. Patterson did not stop after striking her. It was claimed toy some of the state’s witnesses that it was going at a high rate of speed, about 35 miles per hour, and after the accident continued its course. There is evidence from state’s witnesses that:

“The automobile just flashed out onto those car tracks and made a bounce which made a noise and I heard a woman scream and heard a crash like two cars run together. * * * I didn’t see the car hit anybody, just heard the scream, and I really thought it was somebody that was in the car; the car was going so fast it swerved over toward the left.”

Another witness said that just after the car struck Mts. Patterson it swerved a little to the right, hesitated, and then left; that the car did not stop; that no one got out to render any assistance. Another said:

“I ran out of the house and saw two people lying in the street; it was a man and a woman. There was an automobile slowing up in Tenth street, right in front, or a little past. I saw this car slow up, and then it started again. I saw the automobile slow up and the driver lean out and look behind him, and then he pulled out again.”

It is the theory of the state that the appellant was the driver of the car. ,It was his contention that he was not the driver. The conviction is based upon the idea that the state’s theory was correct, and it is upon this theory that the question as tó whether there was an issue of knowledge must be determined. Doubtless, the jury might have concluded that the driver of the car became aware of the accident, but we do not deem it conclusive to a degree that would take the question of knowledge of the accident away from the jury and render it competent for the court to decide it as a matter of law.

The verbiage of the statute is such as to necessarily imply that want of knowledge of the collision would excuse a compliance with the statute. It demands that the driver or person in control shall stop the car and render the necessary aid. The interpretation of the statute in the case of Scott v. State, supra, is in accord with the view that the absence of knowledge would be a defense. Prom that decision we quote: ■

“No new provision has been read into the law. We only construe what ‘all neeesary aid’ means in the statute; and say it must be determined from an accused’s standpoint as to how much and what character of aid appeared to be necessary under any given state of facts. Surely the driver.of an automobile should have no trouble in understanding in advance that in case of an accident he was. expected and required to do what appeared to him to be necessary to alleviate suffering.”

It is true that the word “knowingly” is not included in the act of the Legislature. It would not be necessary, doubtless, for the court to instruct upon that subject in every case, but in a case like the present one, when the evidence leaves the question of appellant’s knowledge of the accident in a condition that its solution is a question for the jury, we think it incumbent upon the court, in response to a proper exception, to instruct the jury that the want of knowledge of the accident would excuse the failure to stop and render aid. Vaughn v. State, 86 Tex. Cr. R. 258, 219 S. W. Crim. Law, § 112; Watson v. State, 13 Tex. App. 76; Alonzo v. State, 15 Tex. App. 378, 49 Am. Rep. 207; Hildreth v. State, 19 Tex. App. 195; Simpson v. State, 58 Tex. Cr. R. 254, 125 S. W. 398; Reed v. State, 53 Tex. Cr. R. 4, 108 S. W. 368, 126 Am. St. Rep. 765; Covington v. State, 51 Tex. Cr. R. 48, 100 S. W. 368; Patrick v. State, 45 Tex. Cr. R. 588, 78 S. W. 947; Wharton’s Crim. Law, § 108.

State’s counsel is quoted in his argument to the jury as saying:

’“This defendant is guilty of one of the most damnable murders, ever committed in Dallas county. His act in murdering Mrs. Byrd Patterson by running over her with an automobile shows him to be a man regardless of social duty”

—and, pointing his finger at the defendant, said:

“There sits the man who committed this murder. I know he is the identical man who did it.”

Counsel for appellant promptly interposed objection to this argument, and verbally requested the court to instruct the jury to disregard it.' The court apparently took no notice of this objection, and permitted .the argument to proceed without interruption. Whether the language used by counsel in a given case is obviously of a nature to impair the rights of the qceused or to improperly prejudice his case before the jury is manifestly a matter that must be determined upon the merits of each particular case. The language used, the issues involved, the attitude of the parties, and the result of the trial are all things which enter into the decision of the question. When the argument is of such a nature, it frequently happens that a reversal must follow from it, although, as in this case, there was no written request to charge the jury to .disregard it. Smith v. State, 44 Tex. Cr. R. 142, 68 S. W. 995, 100 Am. St. Rep. 849; Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966; Flores v. State, 82 Tex. Cr. R. 107, 198 S. W. 575, and cases cited therein. In the instant case, the prosecution was not for the killing of Mrs. Patterson, but it was for the neglect or failure to do that which the dictates of humanity would have demanded, and which the statute required to alleviate the suffering of the injured woman. The statute did not contemplate punishment for the injury or for the death. These are matters which might have been involved had the prosecution been for murder or for • negligent homicide. The purpose of the statute and its* scope were well within the knowledge of counsel and of the court. The jury, however, was likely to lose sight of these matters and fasten their minds upon the fact that from the act of the accused the death of the deceased resulted, and assume that it was their duty to punish for the death and not for the failure to comply with the terms of the statute upon which the prosecution was founded. The language selected and used by counsel was calculated to emphasize this inclination of the jury. In fact, its obvious tendency was to divert the minds of the jury from the real issue, and to bring them to the belief that it was within their province and duty to punish the appellant for the death of the deceased. We cannot bring ourselves to believe that the language .was other than inflammatory and obviously hurtful, and calculated to impair the rights of the appellant and prejudice his cause. The failure of the judge to take notice of it and to disavow its propriety may have impressed the jury with the idea that he approved it; that, by his silence in the face of the protest against it, he indicated his sanction. The extreme penalty allowed by law was assessed. To what extent it was induced by the remarks in question it is not possible to determine. It is certain, however, in our opinion, that the remarks tended to press upon the jury the idea that they were trying the case for killing the deceased, and bring from them the highest penalty within their power. This court, by admonition and by reversals upon many occasions, has done its utmost to repress the practice of intemperate and improper arguments. So much has been said and so often that repetition seems futile. Illustrations are found in the following cases: Gusters v. State, 87 Tex. Cr. R. 181, 220 S. W. 92; Carter v. State, 87 Tex. Cr. R. 299, 221 S. W. 603; Brookreson v. State, 88 Tex. Cr. R. 150, 225 S. W. 375; Beach v. State, 85 Tex. Cr. R. 64; Thurman v. State, 85 Tex. Cr. R. 276, 211 S. W. 785; Flores v. State, 82 Tex. Cr. R. 107, 198 S. W. 575; Wilson v. State, 81 Tex. Cr. R. 216, 194 S. W. 828; Lagow v. State, 81 Tex. Cr. R. 460, 197 S. W. 217; Weige v. State, 81 Tex. Cr. R. 476, 196 S. W. 524; Murmutt v. State, 67 S. W. 510; Robbins v. State, 47 Tex. Cr. R. 315, 83 S. W. 690, 122 Am. St. Rep. 694; Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Taylor v. State, 50 Tex. Cr. R. 560, 100 S. W. 393; Davis v. State, 54 Tex. Cr. R. 250, 114 S. W. 366; Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966; Grimes v. State, 64 Tex. Cr. R. 64, 141 S. W. 261.

For the reasons stated the judgment is reversed and the cause remanded. 
      
       210 S. W. 540.
     
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