
    McDANIEL v. STATE.
    (No. 10361.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1926.
    Rehearing Denied Dec. 22, 1926.)
    1. Automobiles <@=>354 — Evidence of defendant’s use of whisky held admissible on issue of negligent homicide by automobile driver.
    Testimony of witness as to defendant’s use of whisky, prior to committing homicide in running down deceased with automobile, 'held admissible, where part of state’s case depended on proving homicide .was committed by defendant while engaged in unlawful act, as during intoxication or while possessing and transporting liquor.
    On Motion for Rehearing.
    2. Criminal law <@=>1177 — Defendant cannot complain of failure to impose more severe penalty.
    Defendant cannot complain that a more severe penalty than imposed was justified by the testimony.
    Appeal from Criminal District Court, Tar; rant County; Geo. E. Hosey, Judge.
    Jimmy McDaniel was convicted of negligent homicide, and he appeals.
    Affirmed.
    Mays & Mays, of Fort Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in criminal district court of Tarrant county of negligent homicide; punishment fixed at a fine of §1,000.

Appellant was on trial charged with the murder of one Roy Green. The state’s theory was that appellant, following an altercation and a misunderstanding between the parties, deliberately and intending to kill Roy Green, ran over the latter with an automobile. It was a part of the state’s theory that appellant was under the influence of intoxicating liquor at the time. The court submitted, in addition to the law of murder, the law of lessor degrees of homicide, including negligent homicide of the first and second degrees. The verdict of the jury found appellant guilty of negligent homicide of the first degree.

In all of his bills of exception, and also in his brief filed in this court, and by argument orally, appellant attacks 'the action of the court below in admitting the testimony of a number of witnesses as to the use of whisky by appellant on the afternoon and night of the alleged homicide. We are unable to agree with appellant that any of these bills show error. The state could not anticipate what the verdict of the jury would be upon the facts, and, in support of that part of its case wherein appellant was charged with negligent homicide of the second degree, it would be necessary to show that appellant was engaged in some unlawful act at the time Green was. killed. The driving of an automobile while in a state of intoxication is a violation of the law of this state, as is also the possession and transportation of intoxicating liquor, and, as we view the matter, the state might have made the proof objected to in an effort to support conviction upon the theory that appellant was violating the law at the time of the homicide. Believing that none of said bills of exception present error that would justify a reversal of the ease, we are unable to agree with the contention made by appellant.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

We have carefully examined the ingenious argument made by appellant in support of his motion for rehearing, but are still of the opinion that the verdict herein was responsive to the issues and that the evidence before the court justified the conclusion reached. While the testimony might have justified a' much'more severe penalty, this is not a matter of which the appellant c¿n complain.' ■; ' • ■

The motion for rehearing is overruled. 
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