
    HERRING v. STATE.
    No. 13434.
    Court of Criminal Appeals of Texas.
    June 11, 1930.
    Appeal Reinstated June 26, 1930.
    On the Merits Oct. 8, 1930.
    Rehearing Denied Feb. 18, 1931.
    Application for Leave to File Second Motion for Rehearing Withdrawn March 13, 1931.
    Miller •& Price, of Waco, for appellant.
    A. A. Dawson, State’s Atty., of Canton, for the State.
   CHRISTIAN, j.

The offense is driving an automobile on a street in an incorporated city while intoxicated ; the punishment, a fine of $150 and confinement in jail for 90 days.

The recognizance is fatally defective. It is recited therein that appellant stands charged with driving an automobile while intoxicated, and that he has been convicted of the offense of driving an automobile while intoxicated. We have no statute forbidding one, in terms, from operating a motor vehicle while intoxicated. In order to come within the prohibition of the statute, the accused must drive or operate such motor vehicle upon a street or alley or other place within the limits of an incorporated city, town, or village, or upon a public road or highway within the state. Article 802, P. C.; Nicholson v. State, 110 Tex. Cr. R. 112, 7 S.W.(2d) 1075; McFadden v. State, 108 Tex. Cr. R. 166, 300 S. W. 54.

The appeal is dismissed.

PER CURIAM.

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.

On Motion to Reinstate.

CHRISTIAN, J.

The appeal was dismissed at a former day of the term because of an insufficient recognizance. A 'sufficient bond, properly approved, having been timely filed, the appeal is reinstated, and the case will stand for later consideration on its merits.

PER CURIAM.

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.

On the Merits.

CHRISTIAN, J.

The appeal was dismissed at a former term, but later reinstated. The case is now considered on its merits.

The officer who arrested appellant testified that while drunk, appellant drove an automobile on a street in the city of Waco. The testimony of the officer was not controverted.

The record discloses that appellant entered a plea of guilty and that he was duly admonished by the court of the consequences of said plea. Appellant seeks now to challenge the sufficiency of the evidence. On a plea of guilty, the sufficiency of the evidence may not be challenged, except in a case in which the facts adduced are such as to show innocence or in which there is no legal evidence adduced. Crumbley v. State, 103 Tex. Cr. R. 391, 280 S. W. 1064, and authorities cited.

Bill of exception No. 1 is concerned with the argument of the district attorney, wherein he stated that no one had challenged the statement of the officer that “no one got out of appellant’s automobile.” It is stated, as a ground of objection, that appellant did not testify and that no one else could have made the denial. It appears from the court’s qualification of the bill' that appellant’s counsel had taken the position in argument that some one else might'have been driving the car when the officer saw it. The statement of the ground of objection is not a certificate on the part of the trial judge that no one else could have denied that a person other than appellant got out of the automobile. A statement of a ground of objection is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch’s Annotated Penal Code, § 209; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. The bill of exception is insufficient to manifest error. While the question is not before us for decision, it is doubtful if the bill would in any event under the record here manifest error. Appellant pleaded guilty in the presence of the jury to driving the automobile under the conditions charged in the indictment.

Appellant’s motion to quash the indictment was properly overruled. It was charged in the indictment that appellant was under the influence of intoxicating liquor when he drove the automobile. It was further averred that he was in a degree under the influence of intoxicating liquor. If the language “in any degree under the influence of intoxicating liquor” is so vague and indefinite as to make it obnoxious to the provisions of our Constitution, the use of such language did not have the effect of invalidating the indictment. Rejecting it as surplusage, the indictment still charges appellant with having driven his automobile while intoxicated. That part of the statute denouncing as an offense the driving of an automobile while intoxicated has been upheld. Nunn v. State (Tex. Cr. App.) 26 S.W.(2d) 648. See article 802, P. C.

The proof was undisputed that appellant was drunk when he drove the automobile. Hence the fact that the court submitted that phase of the statute authorizing a conviction for driving an automobile while in any degree under the influence of intoxicating liquor would not, if error, warrant a reversal.

An examination of all of appellant’s contentions leads us to the conclusion that error is not presented.

The judgment is affirmed.

PER CURIAM.

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.

On Motion for Rehearing.

MORROW, P. J.

On the original hearing the record was made to appear that a plea of guilty was entered by the appellant. By the corrected transcript it is now made to show that the plea was not one of guilty.

Rutherford, an officer, testified in the most positive terms that about the 22d of October, 1929, the appellant drove his automobile upon a public street while he was drunk. A doctor testified on behalf of the appellant to the effect that on the 27th of October, he treated the appellant for delirium tremens, a malady due to the chronic use of alcohol which produces a form of insanity. The doctor said that his treatment of the appellant began some five days after tbe occurrence upon wbicb tbe present transaction is founded and that be was not able to give an opinion as to tbe condition of bis mind at ' that time as distinguishing between tbe right and wrong of tbe particular happening, but that in bis opinion, at tbe time tbe appellant came under the observation of tbe witness be bad been suffering from delirium tremens for three or four weeks. Tbe doctor further testified that delirium tremens is a temporary form of insanity, that is, “if they quit drinking it will clear up eventually.” “It also depends upon tbe condition of tbe patient.” The doctor said that tbe appellant drank nothing while at the sanitarium, wbicb was after tbe witness began treating him. At tbe time of tbe trial the doctor said that be regarded tbe appellant capable of distinguishing between right and wrong. Tbe officer making tbe arrest testified to circumstances, that is, to words and acts of tbe appellant at tbe time of bis arrest, wbicb tended to show bis ability to estimate the events at tbe time.

In bill of exceptions No. 1, tbe remark of counsel for tbe state is criticized as an indirect reference "to the failure of tbe appellant to testify. From tbe bill it is doubtful 'whether the remark was shown to have violated the statute. However, as qualified, it appears to have been invited by the remarks of counsel for the appellant. An invited remark cannot be made tbe basis for a reversal. See Branch’s Ann. Tex. P. C. § 363, and cases collated; among them, Baker v. State, 4 Tex. App. 223; Martin v. State, 41 Tex. Cr. R. 246, 53 S. W. 849.

The indictment is attacked as being based upon an invalid statute, and also as being duplicitous. Both claims are based upon the verbiage of article 802, P. G. 1925,-wherein the following words appear: “Or in any degree under the influence of intoxicating liquor.” The validity of the statute has been upheld, though the words mentioned, that is, “in any degree,” have been regarded as surplusage and ought not to be embraced either in the indictment or the charge to the jury. The indictment charges that tbe appellant was intoxicated and in a degree under the influence of intoxicating liquor. It is not duplicitous. Only one offense is charged. The words “in any degree” are sur-plusage and should have been omitted from the 'indictment, but their presence, under the facts of the case, furnishes no ground for a reversal of the judgment.

In bis charge to the jury the court instructed upon the law applicable to permanent insanity and temporary insanity due to the recent voluntary use of intoxicating liquor. The evidence is such as to support' the propriety of each of the charges. The doctor who testified that the appellant was suffering from delirium tremens said that-it was a form of temporary insanity due to alcoholism. However, he did not see the appellant until five days after his arrest. At the time of his arrest, the officer designated the appellant as drunk.

Finding no error in the record, the motion for rehearing is overruled.  