
    Martin Durwood Wells v, State
    No. 32,537.
    January 11, 1961
    McDONALD, Judge, not participating.
    
      James L. Mitchell, Dallas 1, for appellant.
    
      Henry Wade, Criminal District Attorney, Jack Hampton, Roger Turner, Phil Burleson, Jack Pevethouse, Assistants Criminal District Attorney, Dallas, and Leon Douglas, State’s Attorney, Austin, for the state.
   DICE, Judge.

The conviction is for negligent homicide in the second degree; the punishment, one year in jail.

In view of our disposition of the case, a recitation of the facts is unnecessary.

The indictment was in two counts, both of which were submitted to the jury.

The first count charged negligent homicide in the first degree.

The second court, under which appellant was convicted, charged that on the date alleged the appellant, while engaged in the performance of an unlawful act “to wit driving and operating a motor vehicle, to wit an automobile across a double stripe and highway marker,” did by negligence and carelessness cause the death of the deceased by then and there colliding with a bicycle which the deceased was riding.

Appellant filed certain objections and exceptions to the indictment which were, by the court, overruled.

Appellant contends that the court erred in overruling his exception to the second count of the indictment on the ground it did not allege the offense of negligent homicide in the second degree. With such contention we agree.

The allegation that appellant was in performance of the act of driving an automobile “across a double stripe and highway marker” was not an allegation that he was in the performance of an unlawful act. The driving of an automobile across a double stripe and highway marker may or may not be an unlawful act. The legality of the act would be made to depend upon the facts and circumstances existing at the time. There is no statute in this state making such an act, per se, a penal offense.

The allegation was insufficient to charge that appellant was in performance of an unlawful act. Appellant’s exception to the second count of the indictment should have been, by the court, sustained.

For the reason stated, the judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.

McDonald, J., not participating.  