
    CAPLES v. STATE.
    (No. 6651.)
    (Court of Criminal Appeals of Texas.
    Feb. 15, 1922.)
    ■Homicide <©=>352 — Judgment finding defendant guilty of negligent homicide sufficient to direct punishment thereunder.
    Where, by information in four counts, defendant was charged with negligent homicide while committing unlawful acts under articles '820h, 820o, Vernon’s Ann. Code Or. Proc. Supp. 1918, a judgment, describing the offense simply as negligent homicide, without naming the degree, was final, and sufficient in form to direct punishment as prescribed by Vernon’s Ann. Code Cr. Proc. 1916, arts. 867, 868.
    Appeal from El Paso County Court, at Law; J. M. Deaver, Judge.
    Ed. A. Capíes was convicted of negligent homicide, and he appeals.
    Affirmed.
    Jones, Jones, Hardie & Grambling, of El Paso, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court at law of El Paso county of negligent homicide, and his punishment fixed at 30 days in the county jail.

Appellant was charged by information in ■said court with negligent homicide, said information containing four counts in each of which it was charged that, the homicide was ■committed by appellant while engaged in an unlawful act. Prom the record it appears that appellant, while operating an automobile, struck a child and killed it. In two of said counts the unlawful act was alleged to be the driving of said car at an excessive rate of speed. See article 820o, Vernon’s Compiled Statutes of 1920. The other two counts charged the operation of said car by ■appellant while intoxicated. Article 820h, Id. It would necessarily follow that a conviction under any of said counts must have been for negligent homicide of the second degree, an essential element in such crime being that the homicide must be committed while engaged in an unlawful act. A jury was waived, and upon trial before the court appellant was adjudged- guilty, the judgment describing the offense simply as negligent homicide. The only complaint here made is that the judgment should have named the degree of such homicide of which appellant was found guilty. No motion in arrest of judgment or for new trial upon such ground was made. Had this been done, under the well-known power of trial courts to reform their judgments during the trial term, doubtless the matter complained of would have been corrected. This being a misdemeanor case, and the penalty given being that affixed by statute, we think the judgment as entered was final, and sufficient in form to direct the punishment of appellant thereunder. Terry v. State, 30 Tex. App. 408, 17 S. W. 1075; articles 867-868, Vernon’s C. O. P.

The judgment will be affirmed.  