Act made specific application to offense of drunk driving the constituent elements of article 42; State may elect to prosecute under such theory rather than for mur der
How later courts described this case
- Act made specific application to offense of drunk driving the constituent elements of article 42; State may elect to prosecute under such theory rather than for mur der
- terms used in sense ordinarily understood and mean “unintentional”
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.
*71
In his motion for rehearing, among other things, appellant insists that we were in error in holding in effect that a killing by mistake and accident as charged in the second count in the indictment was an included offense as that charged in the first count, viz: an intentional killing upon malice aforethought. After reconsidering the matter, we have concluded that such portion of our original opinion as might be construed as holding the offense charged in the second count was included in that charged in the first count should be withdrawn. However, we remain of opinion that under the facts we can not say the jury was without evidence to support the finding of guilt under the count submitted by the trial judge.
Other matters urged in the motion we think were properly disposed of in our original opinion.
The motion for rehearing is overruled.