
    W. T. Hittson v. The State.
    No. 18478.
    Delivered October 28, 1936.
    
    The opinion states the case.
    
      Frank Sparks, of Eastland, and James C. Mahan, of Childress, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for two years.

Omitting the formal parts, the indictment reads as follows :

“On or about the 21st day of November, A. D. 1934, and anterior to the presentment of this indictment, in the county and state aforesaid, W. T. Hittson did, then and there unlawfully drive and operate a motor vehicle upon a public highway in Childress County, Texas, while he, the said W. T. Hittson, was then and there under the influence of spirituous, vinous and malt intoxicating liquors and the said W. T. Hittson then and there and while so driving and operating said automobile then and there killed R L. Simms by driving said automobile against the person of the said R L. Simms.”

Manifestly, the State was seeking a conviction under the provisions of Art. 42, P. C., which we quote:

“One intending to commit a felony and who in the act of preparing for or executing the same shall through mistake or accident do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually committed.” (Italics ours).

There is no averment that apellant voluntarily killed the deceased; nor is there an averment of malice aforethought. Hence the indictment can not be sustained under Art. 1256, P. C., defining murder. Again, it can not be sustained under Art. 42, supra, in view of the failure to allege that the act causing the death of deceased was either through mistake or accident. Appellant’s motion in arrest of judgment should have been sustained.

The judgment is reversed and the prosecution ordered dismissed.

Reversed and prosecution ordered dismissed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  