Harr v. State , 98 Tex. Crim. 1 ( 1923 )

On April 26th the trial judge actually made and entered on his court docket the order extending time to May 27th for filing bills of exception and statement of facts. This order was made within the period of the first extension. It was not entered in the minutes until April 29th; the clerk dated the entry as of that date with the notation "Entered as of April 26, 1922." This misled us to conclude the order was actually made on the 29th, but attempted to be dated back. As explained in the affidavits attached to the motion it shows we were in error in declining to consider the bills of exception.

As stated in the original opinion we have been unable to discover any vice in the sixth and seventh counts in the indictment; but the motion for rehearing has challenged our attention relative to the fourth and fifth counts which were also submitted to the jury and conviction thereon authorized. Subdivision 1 of Art. 1124, of our Penal Code in explaining what is meant by "unlawful acts" as they relate to negligent homicide defines them as "such acts as by the penal laws are called misdemeanors." Subdivision 2 of said article defines "unlawful acts" to be "such as are not penal offenses but would give just cause for a civil action." The penalties provided for negligent homicide differ, depending on the homicide resulting from one or the other of this character of "unlawful acts." If it be based upon an "unlawful act" which is a misdemeanor (a penal offense) the penalty is imprisonment in the county jail not exceeding three years, or by fine not exceeding $5000. (Article 1126 P.C.); if it be based upon an "unlawful act" which is not a penal offense but which would give just cause for a civil action the penalty is by fine not exceeding $1000 and by imprisonment in the county jail not exceeding one year. (Art. 1127, P.C.) In the four counts submitted to the jury in the instant case the learned trial judge treated them all as charging negligent homicide growing out of the commission of an unlawful act which was a violation of the penal laws. This is apparent from the penalty which he authorized the jury to assess in the event of a conviction under the various counts.

The fourth count charges that appellant was "engaged in the performance of an unlawful act in that he was driving an automobile in a careless manner and without due regard to the safety and convenience of pedestrians" upon a street in the city of Dallas. This count is based upon subdivision A of Article 820K, Vernon's Tex. Civil and Crim. Statutes, 1922 Supp. It has heretofore been held in Russell v. State, 88 Tex. Crim. 512,228 S.W. 566, (reaffirmed in Synder v. State, 89 Tex. Crim. 192,230 S.W. 146) that the section of the law in question is too indefinite and uncertain to define an offense, and that a prosecution based thereon cannot be maintained; therefore, so far as the fourth count undertook to charge negligent homicide based upon the performance of an alleged unlawful act which was a misdemeanor it was insufficient, and the charge of the court submitting that count to the jury with the penalty directed was unauthorized.

The fifth count, which was also submitted to the jury, attempts to charge negligent homicide in the performance of an "unlawful act" based upon subdivision K of Article 820K, Vernon's Texas Civil and Crim. Statutes, 1922 Supp. It reads as follows:

"(k) The person in charge of any vehicle in or upon any public highway, before turning, stopping or changing the course of such vehicle, shall see first that there is sufficient space for such movement to be made in safety, and if the movement or operation of other vehicles may reasonably be affected by such turning, stopping or changing of course, shall give plainly visible or audible signal to the person operating, driving or in charge of such vehicle of his intentions so to turn, stop or change said course."

The wording would indicate that the thing in the mind of the Legislature at the time it wrote such provision in the law was the safety of other vehicles or occupants thereof which might be affected by the operation of the vehicle making the turn or changing its course. We seriously doubt that a charge of negligent homicide based upon this provision of the law could be predicated upon an "unlawful act" which would be a misdemeanor. Under proper pleading it might be possible to charge a person with negligent homicide under the provisions of either subdivisions A or K of said Article 820K if the purpose was to charge that character of "unlawful act" which would give just cause for a civil action, but this does not appear to have been the purpose of the pleader in drawing the indictment in the instant case; it evidently was not so understood by the learned judge who tried it, because as heretofore suggested, the only penalty the jury was authorized to assess was that provided for the punishment of negligent homicide based upon an "unlawful act" amounting to a penal offense. It is stated in our original opinion that the exceptions to the court's charge were not authenticated by the trial judge. In this we were in error. We are of opinion that the fourth and fifth counts in the indictment should have been quashed, and their submission to the jury over appellant's protest demands a reversal of the judgment.

Appellant offered to prove his general reputation was that of a law-abiding citizen. The State interposed objection to this evidence upon the ground that it was immaterial in a case where negligent homicide was the charge being investigated. The learned trial judge sustained the objection upon the ground that appellant being charged with driving a car negligently only his reputation for being a careful and prudent man could be put in evidence. In this respect we think the court was in error. If appellant had been prosecuted directly for driving a car while he was intoxicated, or while the car was without lights, there would be little question raised as to his right to show a good reputation as a law-abiding citizen. The sixth and seventh counts in the indictment are based directly upon the proposition that he was doing an unlawful act in violation of a penal statute. We are of opinion the court's ruling in this particular was too restrictive and that appellant should not have been deprived of the tendered evidence. Wharton's Cr. Ev. 10th Ed. Vol. 1, Sec. 59; Underhill's Cr. Ev. 3d Ed. Sec. 136; Bishop's Cr. Proc. Vol. 1, Sec. 1113; Coffee v. State, 1 Tex. Cr. App., 548; Poynn v. State, (Tex. Cr. R.) 48 S.W. 516; Bishop v. State, 72 Tex. Crim. 1; 160 S.W. 705 and other cases cited in Sec. 148, Branch's Ann. P.C.

For the errors discussed appellant's motion for rehearing is granted, the judgment of affirmance set aside, and the judgment now reversed and the cause remanded.

Reversed and remanded.