
    RICHARDSON v. STATE.
    (No. 11269.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    1. Criminal law <@=>814(17) — In prosecution for driving automobile while intoxicated, direct evidence held to render refusal to charge on circumstantial evidence proper.
    In prosecution for driving automobile on public road while intoxicated, direct evidence of offense held to render refusal to charge on circumstantial evidence proper.
    2. Automobiles <§=3355(6) — In prosecution for driving automobile while intoxicated, evidence that road in question was public road held to support conviction.
    In prosecution for driving automobile on public road while intoxicated, evidence that road in question was public road held to support conviction.
    3. Highways <§=H— Road may be shown to be public one by proof of long-continued usage, coupled with official recognition.
    Road may be shown to be public one by proof of long-continued usage, coupled .with official recognition by proper authority.
    
      4. Criminal law <§=>169—Collusive conviction in justice court- for drunkenness on highway held not to prevent subsequent indictment and prosecution for driving automobile while intoxicated.
    Fact that person on complaint signed and sworn to by his friend before justice of peace pleaded guilty without issuance of warrant and without hearing of any evidence and paid finé for drunkenness on highway for purpose of preventing subsequent prosecution did not constitute former conviction, preventing indictment and prosecution for driving automobile on public road while intoxicated.
    5. Criminal law <©=»! 93'/2—Conviction before justice'of peace for drunkenness on highway held not to bar subsequent indictment and prosecution for driving automobile while intoxicated (Code Cr. Proé. 1925, art. 536).
    Under Code .Cr. Proc. 1925, art. 536, conviction of drunkenness on highway on complaint before justice of peace, based on plea of guilty without issuance of warrant and hearing any evidence, held not to bar subsequent indictment and prosecution for driving automobile while intoxicated.
    Commissioners’ Decision.
    Appeal from District Court, Upshur County ; J. R. Warren, Judge.
    D. A. Richardson was convicted of driving a motor vehicle on a public road while intoxicated, and he appeals.
    Affirmed.
    Florence & Florence, of Gilmer, for appellant,
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, unlawfully driving a motor vehicle upon a public road while intoxicated ; penalty, a fine of $50.

Appellant, among other things, makes the claim that this case should be reversed: (1) Because the court failed to charge on circumstantial evidence; (2) because the evidence was insufficient to show that the road in question was the Bettie and Simpsonville Public road as alleged in the indictment; (3) because the appellant had theretofore been convicted upon the same transaction for which he was indicted in the instant case.

Appellant was seen on the occasion in question driving on what was denominated as the Bettie and Simpsonville road, driving from onq side of the road to the other. He drove up to Nelson’s store from this road, a distance of a few feet, and there apparently fell asleep under circumstances from which it might be inferred that he was in a drunken stupor. Some 35 minutes to an hour after that time he got out of his automobile and stumbled and fell down. He was finally' taken home by a friend. Witnesses testified in th,eir opinion he was intoxicated at that time. A complaint was filed against him for being drunk in a public place, to which he pleaded guilty. He refers in his own testimony to being drunk on the occasion in question.

There was no opinion given by any witness. that he was actually drunk while in the car, and it is insisted therefore that the court should have charged on circumstantial evidence. The proven facts are in such close juxtaposition to the main fact as to be, equivalent to direct testimony in our opinion. Disposing of a similar contention, Justice Davidson in the case of Baldwin v. State, 31 Tex. Cr. R. 589, 21 S. W. 679, uses the following language:

“The missing hogs were tracked a short distance from the place at which they were taken, and discovered in the possession of defendant and his brother, who were driving them, and who drove them on home and butchered them. While no witness saw defendant actually take possession of the hogs, yet the criminative circumstances are in such ‘juxtaposition to the main fact’ that the omission to give the charge was not calculated to injure defendant’s rights.”

See, also, Fuller v. State 104 Tex. Cr. R. 60, 282 S. W. 239; Davis v. State 98 Tex. Cr. R. 643, 267 S. W. 513; Adams v. State 34 Tex. Cr. R. 470, 31 S. W. 372.

We think the court properly refused to charge upon circumstantial evidence. •

The indictment charged appellant with driving a motor vehicle upon the Bettie and Simpsonville public road, and it is claimed that there is no testimony either that said road was ever designated by the commissioners’ court by an order as a public road or that the public ever used same as such. The county clerk of Upshur county testified:

“This is the road overseer’s record. There is such a road designated in this record as the Bettie and Simpsonville road. I have a map of that road here. This is the commissioners’ court minutes with a road map pasted in it. The road is designated on this record as the Bettie and Thomas road. Thomas and Simpsonville are the same. There is no other road designated on the map leading from Bettie to Thomas.”

It was further shown that a road overseer was appointed until the regular meeting of the court in 1928 for part of the Bettie and Simpsonville road. One witness testified that this was. a public road and that .he had lived by it for 55 years. He called it, however. the Jefferson and Quitman road, and said the road runs from Bettie to Simpson-.ville. Another witness testified:

“I live right there on the road. That road is generally known as the Bettie and Simpson-ville highway. I don’t know in fact what the name of that road is: that is what they call it.”

A road may be shown to be a public road by proof of long-continued usage, coupled with official recognition by propel authority. “Can a road be shown to be a public road only by the production of an order of the county court establishing it as such? This precise question was presented in the case of McWhorter v. State, 43 Tex. 666, and in that case it was held that, as the road had long been used as a public road and had been recognized as such by order of the court apportioning hands to wort it, these facts were sufficient evidence to establish the fact that it was a public road,'independent of an order of the court to that effect.” Michel v. State, 12 Tex. App. 108. See, also, Berry v. State, 12 Tex. App. 249; Dyerle v. State (Tex. Cr. App.) 68 S. W. 174.

We think the evidence is sufficient to show the road in question to be a public road under the rules before announced. The testimony tends to show the Bettie and Simpsonville public road to be a part of the Jefferson and Quitman road, and that it had been recognized as a public road for more than half a century.

The prosecution for this offense was begun by complaint in justice court in November, 1926. It appears without contradiction that a complaint was prepared by the attorney who now represents appellant charging him with drunkenness on the Jefferson highway (claimed to be the same road as the one in the instant case); that such a complaint was signed and sworn to by a friend of appellant’s before the justice of the peace in the presence of appellant, who immediately pleaded guilty without the issuance of a warrant and without the hearing of any evidence. Appellant testified that one of the reasons he pleaded guilty was to defeat the present ease. The judgment of the justice court was introduced showing that he was convicted of such offense and paid a fine of $1 for same in December, prior to his indictment in the present ease in January, 1927. We think the facts show that the appellant engineered the making of this complaint for the express purpose of defeating the present prosecution, and that under such circumstances the same constitutes no bar as claimed by him. It was said in the case of Warriner v. State, 3 Tex. App. 104, 30 Am. Rep. 124:

“ ‘But sometimes a man, conscious of guilt, procures a proceeding against himself, and suffers a slight punishment, thinking thereby to bar a prosecution carried on in good faith. In such a case, if the first prosecution is really managed by himself, either directly or through the agency of another, he is, while thus holding his fate in his own hand, in no jeopardy; the plaintiff state is no party in fact, but only such in name; the judge is imposed on, indeed, yet in point of law he adjudicates nothing. “All is a mere puppet-show, and every wire moved by the defendant himself.” The judgment, therefore, is a nullity, and is no bar to a real prosecution.’ This authority is supported by a number of decisions. 1 Bishop’s Cr. Law, § 852.”

The rule is stated in L. R. A. 1918A, page 1182:

“A prosecution instituted by others at the instance of the guilty party for the purpose of defeating the state’s prosecution against him is fraudulent, and judgment thereunder will not constitute a bar to the state’s prosecution.”

The following authorities are cited to support this rule: State v. Caldwell (1902) 70 Ark. 74, 66 S. W. 150; Toney v. State (1916) 15 Ala. App. 14, 72 So. 508; Watkins v. State (1879) 68 Ind. 427, 34 Am. Rep. 273; Peters v. Koepke (1901) 156 Ind. 35, 59 N. E. 33; Brackney v. State (1914) 182 Ind. 343, 106 N. E. 532; De Haven v. State (1891) 2 Ind. App. 376, 28 N. E. 562; State v. Green (1864) 16 Iowa, 239; State v. Smith (1897) 57 Kan. 673, 47 P. 541; Com. v. Churchill (1809) 5 Mass. 174; Com. v. Dascom (1873) 111 Mass. 404; State v. Little (1818) 1 N. H. 257; State v. Epps (1857) 4 Sneed (Tenn.) 552; Stepp v. State (1903, Tex. Cr. App.) 77 S. W. 787; Com. v. Jackson (1826) 2 Va. Cas. (4 Va.) 501; McFarland v. State (1887) 68 Wis. 400, 32 N. W. 226, 60 Am. Rep. 867.

We further believe the appellant fails to bring himself within the terms of article 536, C. O. P., reading as follows:

“A former judgment of acquittal or conviction in a court of competent jurisdiction shall be a bar to any further prosecution for the same offense, but shall not bar a prosecution for any higher grade of offense over which said court had not jurisdiction, unless such judgment was had upon indictment or information, in which case the prosecution shall he barred for all grades of the offense.”

Under the undisputed facts the former conviction was not a bar to the present prosecution, nor was any jury question presented for d'etermination.

We have carefully examined the other contentions of appellant, and finding no merit in any of them, 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. 
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