
    LOCKHART v. STATE.
    (No. 11282.)
    Court of Criminal Appeals of Texas.
    Dec. 21, 1927.
    Rehearing Denied Feb. 1, 1928.
    1.'Criminal law <@=>822(i) — In criminal case, court must look to entire charge to determine sufficiency of particular paragraph.
    Reviewing court must look to entire charge ■ in criminal case in determining sufficiency of any particular paragraph thereof.
    2. Criminal law <@=800(2) — In prosecution for drunken driving, definition of terms used in statute need not be given.
    In prosecution for driving automobile while intoxicated, it is not necessary to give any definition of terms used in statute such as “intoxicated' or under the influence of intoxicating liquor to any degree.”
    3. Criminal law <@=800(2) — Court’s statement that one “intoxicated or under influence of intoxicating liquor to any degree” had taken sufficient liquor to deprive him of normal control of bodily or mental faculties held not erroneous in prosecution for drunken driving.
    In prosecution for driving automobile while intoxicated, court’s definition of term “intoxi cated or under the influence of intoxicating liquor to any degree,” as meaning that person has taken sufficient quantity of liquor to deprive him of normal control of bodily or mental faculties, though unnecessary, held not^erroneous.
    4. Criminal law <@=823(4) — Charge to convict of drunken driving, if jury believed defendant drove automobile while intoxicated “to any degree,” held not to authorize conviction, regardless of degree of intoxication, in view of another instruction defining term.
    In prosecution for drunken driving, instruction to convict if jury believed defendant was intoxicated, or under the influence of intoxicating liquor to any degree, and was driving motor vehicle as alleged, held not erroneous as authorizing conviction, regardless of degree of intoxication, in view of definition in another paragraph of charge of term, “intoxicated or under the influence of intoxicating liquor to any degree.”
    5. Municipal corporations <@=>707 — In prosecution for drunken driving, evidence held to take case to jury.
    In prosecution for driving automobile while intoxicated, evidence that defendant’s car struck that of witness, that witnesses could smell liquor on defendant’s breath, and believed defendant was drunk, held sufficient to take case to jury.
    6. Municipal corporations <@=>707 — In prosecution for drunken driving, refusal of charge that “drunk” or “intoxicated” means excessive drinking of liquor depriving one of normal control of faculties held not error.
    In prosecution for driving automobile while intoxicated, refusal to give special charge that by terms “drunk” or “intoxicated” is meant excessive drinking of liquor to extent depriving one of normal control of bodily and mental faculties, held not error, since it is not necessary to require jury to believe that there must be excessive drinking.
    7. Criminal law <©=>829(I) — Special charge> which is but repetition of instruction given, need not be given.
    In prosecution for drunken driving, refusal of special charge in terms almost exactly the same as those constituting court’s main charge ■held not error; it not being necessary to give special charges which are but repetitions of instructions given.
    On Motion for Rehearing.
    8. Municipal corporations <@=>707 — Evidence held sufficient to support conviction for drunken driving.
    In prosecution for driving automobile while intoxicated, in which it was shown that defendant drove automobile into witness’ car and that witnesses smelled liquor on defendant’s breath and believed him intoxicated, evidence held sufficient to support conviction.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    M. M. Lockhart was convicted of driving an automobile while intoxicated, and he appeals.
    Affirmed.
    J. J. Pagan, of Dallas, for appellant.
    Wm. McCraw, Crim. Dist. Atty., of Dallas, and A. A. Dawson, State’s Atty., of Austin, for the State.
    
   LATTIMORE, J.

Conviction for driving automobile while intoxicated; punishment, sixty days in the county jail.

The facts in the case are very short. Witness Hunnicutt testified that the car in which he was driving was struck by one occupied by appellant. He said he cotild smell liquor on appellant’s breath, and that'when he got out of the car appellant did not appear to be able to walk straight. Witness said he believed appellant had been drinking something of an intoxicating nature. Officer Jones testified that he saw appellant at police headquarters, took charge of him, and locked him up; said he could smell liquor on his breath, and from all appearances appellant had been drinking; in the opinion of witness he was drunk. Appellant introduced several character witnesses; also his nephew who was with him at the time of the automobile accident and testified that appellant was not under the influence of liquor at all. Appellant took the stand himself and said that he had been out on a paper route that morning and had met a friend, who suggested that they take a drink. Appellant said he took one drink of whisky, and was then in the car with his nephew driving down the street when the automobile collision occurred.

There are four bills of exception in the record. The first complains of a paragraph of the court’s charge wherein he told the jury that, if they believed beyond a reasonable doubt that on the date mentioned appellant was intoxicated, or under the influence of intoxicating liquor to any degree, and that he did drive a motor vehicle on Elm street, they should convict; the objection to the charge being that thereunder the jury had to convict appellant, regardless of the degree of his intoxication. - We have to look to the entire charge in determining the sufficiency of any particular paragraph thereof. We find in one of the paragraphs of the charge that the court told the jury that by the term, “intoxicated or under the influence of intoxicating liquor to any degree,” is meant that a person has taken into his stomach a sufficient quantity of intoxicating liquor so as to deprive him of the normal control of his bodily or mental faculties. In our opinion • it is not necessary to give any definition of the terms used in the statute, but, one having been attempted, we think it not erroneous. We think the charge not open to the objection contained in said exception.

The second exception was reserved to’ the refusal of the court to give to the jury a peremptory instruction to return a verdict of not guilty. We think the exception is not well taken. The third exception is to the refusal of the court to give a special charge wherein appellant sought to have the jury told that, by the terms “drunk” or “intoxicated,” is meant the excessive drinking of liquor to such an extent as to deprive one of normal control of bodily and mental faculties. We think it not necessary to require the jury to believe there must be excessive drinking in order to make one so under the influence of intoxicating liquor as to interfere with the normal control of his bodily or mental faculties.

The fourth bill of exceptions complains of the refusal of a special charge which is in terms almost exactly the same as the quoted part of the court’s main charge. It is not necessary to give special charges which are but repetitions of instructions already given.

Believing the evidence sufficient, and that no error appears in matters of procedure, it follows that we are of opinion that the judgment must be affirmed, and it is so ordered.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists that the conviction should not be permitted to stand under the evidence. We have again examined the facts, and regret that we cannot agree with appellant’s contention.

The state’s evidence was accepted by the jury as true, and seems to support the verdict.

The motion for rehearing is overruled. 
      
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