
    STALLING v. STATE.
    (No. 6904.)
    (Court of Criminal Appeals of Texas.
    May 31, 1922.
    Rehearing Denied Oct. 11, 1922.)
    1. Highways ⅞=>186 — Indictment charging failure of automobile driver to stop and render assistance after collision held sufficient.
    In prosecution for failure to stop and render assistance after a collision, indictment, charging- that the collision occurred “upon a public highway, to wit, Tenth street, in the city of Dallas, county and state aforesaid,” and that the motor vehicle driven by defendant struck and collided with and injured a named person, that defendant refused to stop and render necessary assistance to such person, that the injuries wefe of such a nature that it was necessary to secure a physician or to convey injured person to a place for treatment of injuries, and that defendant failed and refused to secure a physician or to convey the injured-person to a place where her injuries could be treated, held sufficiently specific.
    2. Criminal law <§=>1134(3) — Constitutionality of statute affecting portion of indictment ignored by trial court as surplusage, not considered on appeal.
    In prosecution of automobile driver for failure to stop and render assistance after a collision in which the court ignored that part of the indictment relating to defendant’s refusal to give his name and address and number of vehicle as surplusage and omitted the question raised by such portion of indictment from his charge, the question of the constitutionality of the statute requiring automobile driver to give name, address and vehicle number after collision becomes- a moot question and will not be considered on appeal.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    W. E. Stalling was convicted of failing to stop automobile and render assistance after a collision, and he appeals.
    Affirmed.
    See, also, 90 Tex-. Cr. R. 310, 234 S. W. 914.
    W. W. Nelms, 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 failure to stop his automobile after a collision and to render assistance, and his punishment fixed at six months in the county jail.

There is no statement of facts in this record, and but two bills of exception, each complaining of substantially the same matter. The refusal -of the court to sustain a motion to quash the indictment is the subject of complaint in one of said bills of exceptions, and the refusal of the court to sustain a motion in arrest of judgment based on the same ground is set forth in the other bill of exceptions.

The indictment contained two counts. The trial court submitted to the jury only the first count. Hence all matters of complaint relative to the second count pass out, and will not be considered by us. The charging patt of the first count is as follows:

“W. E. Stalling * * * was the driver and person in control of a motor vehicle, to wit, an automobile, upon a public highway, to wit, Tenth street, in the city of Dallas, county and state aforesaid, and said motor vehicle did then and there strike and collide with and cause injury to a person, to wit, Mrs. Byrd Patterson, and said W. E. Stalling did then and there unlawfully fail and refuse to stop after colliding - with said Mrs. Byrd Patterson, and did then and there fail to render ail necessary assistance to the said Mrs. Byrd Patterson, in this, to wit: He, the said W. E. Stalling, did then and there fail and neglect to secure a physician, and did then fail and neglect to secure a conveyance and assist in securing a conveyance to carry the said Mrs. Byrd Patterson to a place for treatment for her injuries in said collision, said injuries to the said Mrs. Byrd Patterson then and there being of such a nature that such assistance was then and there necessary, and the said defendant did then and there fail and refuse to give to said Mrs. Byrd Patterson the number of said motor vehicle, and the name and address of the owner thereof, and the name and address of each of the passengers in the automobile of the said W. E. Stalling, not exceeding five.”

Analysis of this quotation shows that it charges that appellant failed and refused to stop after a collision of his automobile with the injured party, and that he failed and neglected to render necessary assistance to said injured person, in that he failed to carry her to a physician for treatment, or to procure a conveyance to carry her to, some place where her injuries could be treated, such assistance being necessary. The allegation of failure and refusal to give the number of his vehicle, and name and address of the owner, which appears in the first count, was insufficiently charged, for the reason that the statute requires that this be done only if requested, and said indictment contained no mention of such request. For this reason probably the trial court in his charge applying the law to the facts omitted any reference to the proposition of failure to give such name and number. That part of appellant’s motion to quash, based on a claim that the statute in question is unconstitutional because it in effect seeks to compel a citizen to give evidence against himself, is directed entirely at that part of the law which requires one who collides with another to give the number of his vehicle and the name and address of the owner. That part of the indictment in the instant case having been ignored by the trial court as surplusage, and the question therein' raised having been omitted from his charge, the complaint of unconstitutionality would appear to become a moot question, and will not be considered by us. If this proposition had been sufficiently charged and had been submitted by the trial court so that the question was properly before us, we would be inclined to disagree with the contention. It would not appear that the mere fact of a collision of an automobile with the person or vehicle' of another would ipso facto constitute a crime, and the right to refuse self-crimination would not per se arise from the fact of such collision. There seems nothing in the statute under consideration which is based upon the hypothesis that either party to a collision is thereby committing a crime. The legal duties sought by said statute to be imposed in such ease are apparently only those which humanity and necessity would dictate. Scott v. State, 90 Tex. Cr. R. 100, 233 S. W. 1097, 16 A. L. R. 1420.

Referring to another part of said motion to quash, we think; it not necessary that the indictment more specifically describe the highway upon which the alleged collision occurred than to speak of it as “Tenth street, in the city of Dallas.”

We also think it sufficiently specific for the indictment to charge that Mrs. Patterson was injured in said collision, and that it was necessary to secure a physician, or to convey her to a place for'treatment of her injuries, and that the appellant failed and refused to secure a physician, or to convey her to a place where her injuries could be treated.

Having thus disposed of the contentions of appellant, and finding nothing in the record requiring a reversal, it is ordered that the judgment be affirmed.

On Motion for Rehearing.

MORROW, P. J.

We are constrained to adhere to our ruling upon the original submission of this case. The constitutionality of the statute was upheld in this prosecution on a former appeal. See 90 Tex. Cr. R. 310, 234 S. W. 914. It was also sustained in the case of Scott v. State, 90 Tex. Cr. R. 100, 233 S. W. 1097, 16 A. L. R. 1420.

The views of the court touching the sufficiency of the allegations in the count of the indictment upon which the conviction 'rests are sufficiently stated in the original opinion.

The motion for rehearing is overruled. 
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