The opinion
GRAVES, Judge
(dissenting).
My Brethren are firm in the belief that this cause should be reversed and remanded.
The original opinion herein states the following:
“Appellant’s chief contention is that the trial court erred in overruling his motion in which he requested the court to peremptorily instruct the jury to acquit him. He bases his contention upon two grounds. First, that injuries which the deceased received were not inflicted upon a highway, but after the automobile had passed from the highway through a barbed-wire fence and into a pasture. Second that the uncontradicted evidence shows that he had no knowledge that the deceased was on the turtleback or the left rear fender of the automobile at the time of the unfortunate occurrence and therefore could not be guilty of murder under Art. 802c, P. C. *
“The driving of an automobile upon a public highway by a person while intoxicated is a misdemeanor under Art. 802, P.C., but becomes a felony under Art. 802b, P.C., when such person has theretofore been convicted of such offense. Consequently, in the absence of being charged with having theretofore been convicted of driving an automobile upon a public highway while intoxicated, he would not be guilty of a felony. Therefore, to bring the act of the appellant in the present case within the purview of Art. 802c, P.C., his act of intentionally driving an automobile, while intoxicated, through a barbed-wire fence must constitute a felony under the law.”
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I think the opinion has mixed and intermingled the three statutes quoted therein, and is trying to operate under all three of them at the same time.
With this conclusion I do not agree. I think the instant statute stands alone and itself refutes the above quotation from the original opinion. Art. 802c, P.C. reads as follows:
“Any person who drives or operates an automobile or any other motor vehicle upon any public road or highway in this State, or upon any street or alley or any other place within the limits of an incorporate city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, and while so driving or operating such automobile or other vehicle shall through accident or mistake do another act, which if voluntarily done would be a felony, shall receive the punishment affixed to the felony actually committed.”
I do not think that it was necessary to have shown herein that this was the second or subsequent act of driving while intoxicated upon the part of appellant before he could be convicted under Art. 802c, P.C. Nowhere therein is it said that upon a subsequent conviction Art. 802c, P.C., shall only apply, nor is there aught said about while in the commission of a felony by the accused.
The intent to kill is not here presented by either the charge itself or the statute. The statute absolutely precludes the intent to kill by saying that such drunken driving* should be punished the same as if voluntarily done, meaning voluntarily or intentionally done. “Voluntarily” as here used means intentionally or by design, and a voluntary killing is simply an intentional killing. 22 Tex. Jur., p. 550; Miller v. State, 112 Texas Cr. R. 125, 13 S. W. (2d) 865 ; Thompson v. State, 24 Tex. App. 383, 6 S. W. 296 ; Crutchfield v. State, 110 Texas Cr. R. 420, 10 S. W. (2d) 119 .
If the act was done by accident or mistake as herein charged, same could not have been done voluntarily or intentionally. If such was done voluntarily, then same would have been intentionally done, and appellant be punished as is affixed for murder, but if by accident or mistake a felonious act is done by a drunken driver, then the question of intent is lost in the fact of accident, the question of intent only arising as to the fact of driving while intoxicated. Appellant is not charged with murder;- he doubtless would have been if he had possessed at the time an intent to kill, but his intent is unnecessary as to the kill
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ing if by his drunken driving he kills another by accident; he has committed an offense; he cannot defend on a lack of intent to commit the crime actually committed, and his punishment is arrived at by consulting the statute that would have denounced the offense, provided same was voluntarily or intentionally done. Art. 802c, P.C., takes away from an accused a right given him of the defense of accident or mistake because of the fact of drunkenness being present. The case of Latta v. State, supra, quoted in the original opinion, is not in point. In that case Latta was not drunk nor charged with drunken driving: His claim was that while his wife was in a vacant room next to their living room, the accused appeared at the door leading into such room with a pistol in one hand a grape fruit in the other, and while attempting to close the door, not knowing his wife was in such vacant room, the pistol went off accidentally and killed the wife. Of course the accused had the right to have thé jury instructed relative to an accidental killing, and the case was reversed, among other reasons, on account of an error in such charge. There was no effort of any kind made to bring the Latta case under Art. 802c, P. C.
The opinion again states:
“Had the appellant in the present case known that the deceased was on the rear fender of the car and with full knowledge thereof he had deliberately driven through the barbed-wire fence, an entirely different question would be presented. Had appellant, while under the influence of intoxicating liquor, driven the car upon said highway, and, by accident or mistake, struck the deceased, whether he saw him or not but where he should have expected people to be, he would no doubt be guilty under Art. 802c, P.C.”
The first portion of such above quoted statement would have made out a perfect case of murder, hot a killing by accident or mistake while drunk driving. The last portion of such quotation is borne out by the evidence. There were present at the time df Mr. Jeffus’ "death on such highway, evidently close together, eight persons, and at least four automobiles, two in the ditch, and an automobile and a truck on the highway. Mr. Jeffus’ car engine was running, with two women in it, the lights shining on the two cars stuck in the pit; appellant jumped in the Jeffus’ car, one of the women jumping out, and the other trying to stop him and trying to cut off the engine, and he started the car and ran it toward three men down in the ditch who were trying to extricate the cars stuck down there; he then turned and ran the car across the highway, Mr. Jeffus and Venson Smith fol
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lowing him, and Mr. Jeffus catching the car and getting on the left-hand running board of the Ford Coupe; whereupon appellant ran into the fence and Mr. Jeffus there met his death.
Appellant’s defense was that he had previously the same night, and at practically the same place, attempted to stop a truck on the highway, and such truck had struck him, knocked him down, and so badly injured him that he lost consciousness and remembered nothing of the events that took place that night, and did not recover consciousness until the next morning. He claimed to know nothing about the taking of the Jeffus’ car, nor about Mr. Jeffus’ death. This defense was submitted by the court and no complaint made thereon. In fact no mention is ever made in any objections or exceptions of any lack of intent, the burden of all such objections being that the killing of Mr. Jeffus took place off the highway, and therefore that appellant did not kill him while drunk driving on a public road or highway, but killed him in a pasture, beyond the highway fence.
The second complaint mentioned in the opinion, that is lack of knowledge upon appellant’s part of Mr. Jeffus’ position on the car, is only voiced in appellant’s brief and not in the record. Guilty knowledge is no part of the denounced offense; nowhere therein is appellant accused of knowingly committing the act charged. If such were true, then in the killing of a person upon the highway in a collision with another car it would have to be shown that the accused knew that such person was present in said car thus collided with, although there might have also been many others present therein. Hot only that, but one who recklessly, while intoxicated, drove down a highway in the dark could defend upon the ground that, although drunk, "he did not see the person he thus recklessly killed; having eyes to see, he saw not.
Again, appellant says that by reason of his being struck by a truck, prior to Mr. Jeffus’ death, he knew absolutely nothing about what happened at such death, the State countering, however, with the theory that the reason of appellant’s lapse of memory being his drunken condition; and yet the opinion herein requiring the State to show that appellant knew of the presence of the deceased upon the left fender of the coupe before a conviction for this killing by accident or mistake can be upheld.
The facts do not show that the deceased was on the rear fender of the car as is mentioned in that last portion of the opinion
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herein; the facts do show that the deceased was on the left-hand running board of the car, the last time he was seen before he was struck; he was surely within close proximity to this appellant, as he drove through the fence, and the class of supposed circumstances as presented in the latter portion of such opinion would not have constituted guilt under Art. 802c, P.C., but would have been murder; this statute is not a murder statute,— it is a drunk driving statute. This appellant is not charged with being a murderer; he is charged as a drunk driver with killing a man by accident. The gist of the offense is not the knowledge of Mr. Jeff us’ position of danger on the car and his killing by running into the fence; that would have been murder; the burden of this offense is the unlawful driving of a drunken person on a highway and accidently killing a person, an entirely different offense from murder, and associated therein only in the amount of punishment.
The case of Cockell v. State, 117 S. W. (2d) 1105 , is strongly in point and should certainly be persuasive herein. Appellant was undoubtedly drunk, and driving an automobile while drunk; he unlawfully possessed himself of • the deceased’s car over the vigorous objections of Mrs. Jeff us; he again drove that car and by accident killed Mr. Jeff us with Jeff us’ own car while trying to escape.
I think this cause should be affirmed, and I therefore respectfully dissent from the opinion reversing the same. .