
    BROWN v. STATE.
    (No. 11085.)
    Court of Criminal Appeals of Texas.
    Nov. 30, 1927.
    Highways <S=ol86 — Evidence held not sufficient to sustain conviction of driving automobile while intoxicated (Pen. Code 1925, art. 802).
    In prosecution under Pen. Code 1925, art. 802, for driving automobile while intoxicated, evidence equally consistent with guilt or innocence held insufficient to sustain conviction.
    Appeal from District Court, •Harrison ' County; P. O. Beard, Judge.
    P. D. Brown was convicted of driving an automobile while intoxicated, and he appeals.
    Reversed and remanded.
    Geo. L. Huffman, of Marshall, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is driving an automobile while intoxicated; punishment fixed at confinement in the penitentiary for 1 year.

The prosecution is under article 802, P. C. 1925, which penalizes the act of one driving a motor vehicle upon any public highway while the person is intoxicated or under the influence of intoxicating liquor. Without stating, but merely summarizing, the facts as they appear in the record, the following statement is made: Morris, the owner of a Ford automobile in which he and others were traveling, stopped on the right-hand side of a public road where it passed the house of Homer Speer. While standing there, the appellant’s car ran into it from the rear. The impact drove Morris’ car into the ditch and injured it, but none of the occupants of the car were seriously hurt. The appellant’s car turned over and was wrecked. He was pinned under it and remained there for some time, but was extricated by Morris, his companions, and others who had assembled after the collision. Several witnesses expressed the opinion that the appellant was intoxicated. Detailing the conduct of the appellant upon which the opin-' ion was formed, they related that he was pinned under the ear; that he was unconscious and .thought to be dead; that upon recovering he staggered and was confused, starting first in one and then in another direction; that while on the way to jail in the car of an officer, appellant tried to lie down, claiming that he was hurt; that he was carried down the steps from the police station by the officer.

In his testimony appellant claimed the collision was caused by the blinding effect of lights from approaching cars and the location of Morris’ car on the road. The state’s evidence showed that the road was one on " which an average of 12 cars a minute passed the point where the collision occurred, and that on that night (Sunday night) the road was traveled by many cars. Appellant denied the use of intoxicants, and in this he was supported by his employer. Appellant testified that he was rendered unconscious by the collision; that he did not remember his release from the overturned car or the incidents immediately connected with his release. He said he was injured and continued to suffer therefrom.

The evidence in t£te case, in its effect, is not dissimilar from that before the court in the case of Chairez v. State, 98 Tex. Cr. R. 433, 265 S. W. 905. In the instant case, the only testimony upon which the witnesses claimed that the appellant was drunk comes from their conclusion from his acts subsequent to the collision and the injury which he received. All of the circumstances upon which the unfavorable conclusion was reached by the state’s witnesses are quite as consistent with his innocence as with the guilt of the appellant ; that is, all his acts harmonize with his theory that his confused, staggering, and helpless condition was due to the injury rath-( er than to intoxication. The testimony was direct that there was no whisky about the ear. But one of the witnesses claimed to have noticed the odor of whisky. On that subject, it was said by this court in the Chairez Case, 98 Tex. Cr. R. 435, 265 S. W. 906, as follows:

“So explained the only testimony left to the state is that the smell of liquor was upon appellant’s breath. This is denied by appellant and his witnesses, but conceding the testimony of the state’s witnesses to be true in this respect, we are not willing to say that under all the facts of the case it shows appellant to have been driving an automobile at a time when he was drunk, or to any degree intoxicated.”

The main fact upon which the culpability of the appellant depends is his intoxication. The opinion of the state’s witnesses upon that subject rests alone upon the accuracy of the inference they drew, from the facts which they related touching the conduct of the accused after.he was injured. The facts so related, as stated above, are inconclusive, especially when tested by the law pertaining to circumstantial evidence. The evidence, as a whole, leaves this court in such doubt touching its sufficiency to support the verdict that it 4oes not feel warranted in sustaining the conviction, but is of the opinion that the appellant’s motion for new trial should have been granted.

' Por the reasons stated, the judgment is reversed and the cause remanded. 
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