Flowers v. State , 150 Tex. Crim. 467 ( 1947 )

DAVIDSON, Judge.

The indictment contained two counts. The first charged appellant with the killing of Elizabeth Phillips with malice, by running into her with an automobile; the second charged a violation of Art. 802c, Vernon’s Penal Code, in that appellant, by accident and mistake, killed Elizabeth Phil ips by running into her with an automobile which he was operating while under the influence of intoxicating liquor. Conviction was under the second count, with punishment fixed at five years’ confinement in the penitentiary.

It would serve no useful purpose to detail the facts of this tragic killing. It is sufficient to say that about eight o’clock Sunday night, August 4, 1946, three young ladies, Elizabeth Phillips (deceased), Ruby Redden, and Joyce Lowrie were walking abreast upon the gravel portion of and some feet from the edge of the regularly traveled or paved portion of a public highway. Appellant, driving his car at a high rate of speed, passed on the right another car and ran into the three young ladies, killing the deceased.

The State’s testimony showed that appellant was drunk and under the influence of intoxicating liquor at the time.

Appellant denied that he was intoxicated. In this, he was supported by other and disinterested witnesses. Appellant’s explanation of the accident was to the effect that the car in front .of him had attached thereto a trailer carrying a boat and was traveling without lights and that he suddenly realized he was going to run into the boat. To avoid that, he pulled his car to the right and, as he did so, in attempting to apply the brakes on his car his foot also pressed down the accelerator of his car. According to appellant’s own version of the matter, the collision was the result of accident and mistake.

The only issue, then, for the jury was that of appellant’s intoxication. The jury determined that issue against appellant, and the facts therefore warrant the conviction.

Appellant filed an application for a suspension of sentence and supported it by testifying that he had never before been convicted of a felony.

This issue was not submitted by the trial court in his charge to the jury. No exception or objection was reserved to the charge because of the failure to submit said issue. Appellant contends that the action of the trial court constitutes error, not- • withstanding his failure to object to the charge.

To this contention we cannot agree, for to do so would render nugatory the express provisions of Arts. 658 and 666, C. C. P., which require that all objections to the charge must be presented before the charge is read to the jury.

A suspension of sentence is a right peculiarly conferred by statute to an accused. To receive the benefit thereof the accused must bring himself within that statute. It is a right, then, that may be waived, and is waived by a noncompliance with procedural statutes. His failure to object to the charge for failing to submit the issue of suspension of sentence therefore constituted a waiver by appellant to have the jury pass upon that question.

Upon cross-examination, appellant admitted that, “It is a fact that I am now under indictment in this court for murder in another case other than the case for which I am now on trial.” Appellant’s objection that such testimony was irrelevant, immaterial, and highly prejudicial was overruled. The trial court at that time stated, “I will admit it only bearing on the credibility of the defendant as a witness and so instruct the jury in the charge.”

The further objection was then urged to the admission of the testimony because the other indictment referred to grew out of the same transaction for which appellant was then on trial. The trial court then stated, “There is no evidence it grew out of the same transaction.” Thereupon, out of the hearing of the jury, it was explained and agreed that said other indictment for murder against the appellant did, in fact, grow out of the same transaction for which appellant was then upon trial.

The court then sustained appellant’s objection to the testimony, and thereafter did in his charge instruct the jury not to consider such testimony.

Appellant insists, nevertheless, that reversible error is reflected.

It will be noted that the jury were never made acquainted with the name of the person appellant was alleged in the other indictment to have murdered. The statement of facts in this case does not disclose that evidence was before the jury that any other person save and except the deceased, Elizabeth Phillips, was killed in the collision. Consequently, the jury was not made acquainted with the fact, directly nor indirectly, that the other indictment charging appellant with murder grew out of the same transaction.

As the matter is here presented, all that was before the jury was appellant’s admission that he was under indictment for murder in another case. The jury were instructed that said testimony was withdrawn and that they could not consider it for any purpose. Ordinarily, error in the admission of evidence is cured by withdrawing such evidence and instructing the jury not to consider it. 13 Texas Digest, p. 1067, Sec. 1169(5). An exception to the rule prevails where the evidence is of such a harmful or prejudicial character as that its effect could not be withdrawn from the jury. Deckerd v. State, 88 Tex. Cr. R. 132, 225 S. W. 166; Edmondson v. State, 106 Tex. Cr. R. 321, 292 S. W. 231; Johnson v. State, 20 S. W. (2d) 1065; Melton v. State, 121 Tex. Cr. R. 195, 49 S. W. (2d) 803.

In the light of the facts as a whole, as well as the lone issue of intoxication, we cannot bring ourselves to the conclusion that the instant case falls within the exception or that reversible error is reflected. See Chandler v. State, 103 Tex. Cr. R. 490, 281 S. W. 568.

The witness Giddings, who was riding in the car with appellant at the time of the accident, testified, among other things, that appellant was not drunk or under the influence of intoxicating liquor at that time. He accompanied appellant and peace officers to the county jail after the accident. Witness was asked, upon cross-examination, if, after arriving at the jail, he did not make a statement to one of the officers relative to the appellant, “Well, he is pretty damn drunk, ain’t he boys?” Witness denied making the statement.

The State then proved by the officers that he did make such statement — to which impeaching testimony appellant objected because it was immaterial, hearsay, and an attempt to impeach the witness Giddings upon an immaterial matter.

It is permissible for impeachment purposes to prove that a witness made statements, out of court, contrary to what he testified as to material matters, at the trial. Branch’s P. C., Sec. 174, p. 106. The testimony was admissible, under the rule stated. The trial court limited the testimony, in his charge, to impeachment purposes only.

At the close of the evidence and before the charge was read to the jury, the appellant moved to require the State to elect upon which count in the indictment a conviction would be sought. This motion was overruled, and appellant excepted.

Both counts were submitted to the jury, and the jury expressly convicted under the second count.

It is a rule of long standing that in eases involving a prosecution for a felony, the State will not be required to elect as between counts in the indictment charging offenses growing out of the same transaction. Branch’s P. C., p. 232, Sec. 444; 23 Tex. Jur., p. 663, Sec. 53; 21 Tex. Digest, p. 518, Sec. 132(5).

The transaction here involved was the death of the deceased. The question was whether death was caused by the unlawful act of the appellant. The indictment, in separate counts, charged that it was so caused by appellant. Under such circumstances, no election was required.

No reveresible error appearing, the judgment of the trial court is affirmed.

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.