
    Ex parte MOONEY.
    (No. 10324.)
    (Court of.Criminal Appeals of.Texas.
    Feb. 16, 1927.)
    1. Municipal corporations &wkey;»592(2)— Ordinance 'punishing negligent collision with motor vehicle held not in conflict with statute making negligent collision with person aggravated assault (Pen. Code 1925, art. 1149).
    Ordinance making driver of motor vehicle, negligently colliding with another vehicle, animal, or person guilty of misdemeanor held, not in conflict with Pen. Code 1925, art.- 1149, making willful or hegligent operation of motor vehicle causing collision with any person an aggravated assault, in so far as ordinance relates to collision with another automobile.
    2. Municipal corporations <&wkey;707 — Ordinance punishing negligence in operating automobile held sufficiently definite.
    Ordinance, making any person driving motor vehicle who, by negligence causes collision with any other vehicle, animal, or person, guilty of misdemeanor, held not inoperative for indefiniteness for failure sufficiently to define negligence, where negligence was defined in ordinance as want of ordinary care as person of ordinary prudence would use under like circumstances.
    3. Municipal corporations <§=^592(1) — City held authorized to penalize negligent driving of automobile, where regulation does not conflict with state law.
    City, which by charter was vested with authority to control use of streets and highways, could regulate usé of streets by automobiles" by penalizing negligent driving, though subject of negligent driving was covered by state law, provided regulation was not in conflict with state law.
    Application by Fred Mooney for a writ of habeas corpus to secure petitioner’s release after conviction, under a city ordinance, for negligently permitting his automobile to collide with another automobile.
    Application denied, and relator remanded to custody.
    Leonard Brown, C. .7. Andrews, and Andrew Young, all of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., of Austin; and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

This is an original application for a writ of habeas corpus.

The validity of an ordinance of the-city of San Antonio, Tex., is attacked. The ordinance denounces a negligent collision,, and declares that:

“If any person driving or operating or in-charge of any motor vehicle, * * * shall, by negligence, cause or suffer or permit the-same to come into collision with any other vehicle of any nature whatsoever, or with any animal, person, etc., * *■ * in or on any public street, * _ * * or any public place whatever, in the city of San Antonio, Tex., such, person shall be deemed guilty of a misderiiean- or, and upon conviction shall be fined in any sum not exceeding $200.”

Against the validity of the ordinance, the-point is made that it is in conflict with article 1149, P. C. 1925, which reads thus:

“If any driver or operator of a motor vehicle or motorcycle upon the public highways of this state shall willfully, or with negligence, as is defined in this title in the chapter on negligent homicide, collide with or cause injury less than death to any other person upon such highway, he shall be held guilty of ággravated as-, sault and shall be punished accordingly unless such injuries result in death, in which event he shall be dealt with under the general law of' homicide.”

The specific phase of the ordinance upon-which the conviction rests is that the appellant, driving an ahtomobile, by negligence, permitted it to come into collision with another automobile.. We do not understand that article 1149, P. C., which is quoted above, would be violated unless the driver of an automobile upon the public highway should willfully or by negligence cause injury to a person. We are therefore of the-opinion that, so far as the ordinance relates to the particular matter charged, it is not in conflict with the statute mentioned.

It is also contended that the ordinance-, is indefinite to a degree that renders it inoperative. This, as we understand it, is upon the ground that the term “negligence,” which is defined in the ordinance as “the want of ordinary care and caution as a person of ordinary prudence would use under like circumstances,” is not sufficiently definite to meet the measure of the law touching a criminal ordinance. It has been held that an indictment in the iform of article 1149 of the state law, supra, or which used the language of the statute; namely, “with negligence,” was sufficient to charge an offense. See Ratliff v. State, 95 Tex. Cr. R. 511, 254 S. W. 965; also, Kuling Case Law, vol. 13, p. 299, § 249; Berry on Automobiles (3d Ed.) § 155.

A regulation touching the use of the streets by automobiles, wbicb is within the scope of the'city’s charter powers, is not inhibited by the state law upon the subject unless there be a conflict between the two. See Gill v. City of Dallas (Tex. Civ. App.) 209 S. W. 209; City of San Antonio v. Besteiro (Tex. Civ. App.) 209 S. W. 472; City of San Antonio v. Fetzer (Tex. Civ. App.) 241 S. W. 1034; Ex parte Curry, 96 Tex. Cr. R. 3, 255 S. W. 730; Ex parte Wright, 82 Tex. Cr. R. 247, 199 S. W. 486; Ex parte Parr, 82 Tex. Cr. R. 525, 200 S. W. 404; Vernon’s Tex. Civ. Stat. 1925, vol. 2, p. 309, note 20, also, p. 344, note 5; Ex parte Jonischkies, 92 Tex. Cr. R. 461, 244 S. W. 997.

In its charter, the city of San Antonio is ■vested with the authority to control the use .■of the streets and highways within the city. This power, of course, is to be exerted in a -manner not to bring it in conflict with the state law upon the subject.

The application for writ of habeas corpus is denied, and the relator is remanded to custody. 
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