
    HITTSON v. STATE.
    No. 18478.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1936.
    Frank Sparks, of Eastland, and James C. Mahan, of - Childress,. for appellant.
    Lloyd W. Davidson, State’s Atty., 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 21 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 aw' 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 article-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 appellant voluntarily killed the deceased; nor is there an averment of malice aforethought. Hence the indictment cannot be sustained under article 1256, P.C., as amended by Acts 1927, c. 274, § 1 (Vernon’s Ann.P.C. art. 1256), defining murder. Again, it c.annot be sustained under article 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.

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.  