Stewart v. State , 108 Tex. Crim. 199 ( 1927 )

Appellant files a motion for rehearing formidable in appearance and lengthy in statement, each proposition in which has been carefully considered. The evidence is set out at length in the motion, but, as we view it, the proposition attempted to be supported by the lengthy statement of testimony is not in the case. Nothing in our opinion holds that the only issue of fact before the jury was whether appellant was drunk or not. No witness swore that he was slightly under the influence of intoxicants, or that he was only to a limited degree affected by liquor. He and his witnesses denied that he had had any intoxicant, or was at all under the influence of liquor, and the state witnesses affirmed that he was drunk. We merely said there being no testimony raising the issue that he was slightly under the influence of intoxicants, the court did not err in refusing to attempt to define to the jury the issue of degrees of intoxication. Same was not involved in this case, nor do we think it can ever properly be in such a case. Williams v. State, 100 Tex.Crim. Rep., 271 S.W. 628.

The court told the jury that if appellant was under the influence of intoxicants at the time he was driving his car on the public highway, and the jury so found, he should be convicted. This was the law applicable to the second count in the indictment, under which the trial was had.

The other propositions advanced by appellant were all discussed at length in our former opinion, and, as we think, correctly decided.

Being unable to agree with the contentions made, the motion for rehearing will be overruled.

Overruled.