Without reviewing seriatim the matters set up in the state's motion for rehearing, we express the belief that the indictment in this case is sufficient on the theory that an averment of a killing upon malice aforethought includes one without such malice, but it is difficult to see how the jury could have escaped confusion in their determination of the issues involved, in view of the way in which the case was submitted in the charge. There was no evidence supporting any conclusion that the killing was upon malice aforethought, or that appellant intentionally or wilfully struck deceased with an automobile.
The killing was the result of an accident, and the real question involved is, was the accident caused by the appellant being under the influence of intoxicating liquor at the time, or did it result from some other cause which would or might reasonably have brought about said accident, independent of appellant's condition, this being a fact issue for the jury upon proper submission by the court. In other words, the mere fact that a man is under the influence of intoxicating liquor while operating a *Page 368 car on a highway, this being in and of itself the commission of a felony, should not in reason and common sense make him guilty of murder, if he be operating the car correctly, and as a man should who was not under the influence of intoxicating liquor, and an axle break, or a cotter pin shear, or a wheel run off, or a blow-out occur without any casual connection between these and the manner or means of operation of the car as a result of appellant's condition, and in such case a death result. Illustrations might be multiplied of conditions in which death might occur from some accident not arising from or caused by the drunken condition of appellant or by the manner of his operation of the car.
The testimony in this case beyond question raised the issue as to whether the car operated by appellant left the pavement, went into a ditch and killed the child, as a result of his being under the influence of intoxicating liquor, or as the result of a blow-out of the right front casing, not caused by or brought about by the appellant being under the influence of liquor. The boys who witnessed the accident said appellant was not driving over thirty-five miles an hour. Parties who were at the scene immediately after the accident said they observed where the car left the pavement and turned over into the ditch, and there was a broad flat track such as would be caused by a casing which had been blown out. Parties who saw appellant's car immediately after the accident testified that the right front casing was blown out, and the man who was called upon to fix the flat after the accident testified to the same thing.
There is no defense or excuse for the operation of a car upon a public highway by one under the influence of intoxicating liquor, and the rights of all people to the free and safe use of public highways should be carefully observed and rigorously maintained, but the highest and best guarantee of all our rights and liberties is found in adherence to the requirements of the law. Safety and security do not dwell where the law is not faithfully, fairly, and impartially administered. The comprehension of article 42, P. C., is great and its terms might be made oppressive if its purpose and intent be not safeguarded by proper construction. We think it worth while to again quote said article, which is as follows: "One intending to commit a felony and who in the act of preparing for or executing the same shall through mistake or accident do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually committed."
We have carefully examined every case governed by this *Page 369 article reported in the volumes of the opinions of this court and of the Supreme Court when it had criminal jurisdiction, and all down to the Norman case, hereinafter referred to, seems to be cases in which the thing actually done by accident or mistake by the accused, were those like that which he had intended to do in the commission of a felony, or were those which might ordinarily result from the acts of the accused in furtherance of his original intent, or preparatory acts in the execution of such intent to commit a felony, such as a man shooting at one with intent to kill and killing another, or assaulting one with intent to murder and accidentally striking another, etc. Careful examination of the article above quoted makes plain that there must be in the mind of the accused throughout the intent to commit a felony. "One intending to commit a felony, and who in the act of preparing for or executing the same," is the language of said article. It might be admitted, for the sake of argument, that one intending to get drunk and thereafter enter an automobile and drive it on a public highway, which would thus become a felony, might have an accident causing death, which to characterize as murder would require a flight of imagination. Suppose A should propose to a group of his friends that they all drink some liquor and then drive to town in his car. They agree. A reaches up on a shelf to get a bottle of whisky, not knowing that some one had put poison in the liquor. He gives it to his friends. They drink it and die. While this might be characterized as the result of a mistake and in the course of preparation to execute a felony, it would hardly be contended that A was guilty of murder. Again suppose A and his friends after partaking of the liquor should start down to the street where his automobile is awaiting to drive on a highway, and as they go downstairs A should stumble and fall against B, the latter having in his pocket a pistol which, as the result of the accidental fall, is discharged and kills C. Would it be contended that this by any kind of reasoning or logic should be called murder? We think not. Such conclusion seems incredible. As well say that, if the car of a man under the influence of liquor and in operation upon a highway, be struck by lightning and as a result the car become unmanageable and the death of some party resulted, the driver could be held guilty of murder.
In Norman v. State, 52 S.W.2d 1052, we said: "It is not enough that he be intoxicated while driving his car on such highway, but his such driving must cause the death of the other party." *Page 370
In the Norman case the accused claimed that, even though he might have been under the influence of intoxicating liquor, he was driving his car properly and on the proper side of the road when another car ran into his, causing the death of an occupant of said other car. We further said in that case: "It cannot be sound law that one who drives his car correctly, and on the proper side of the highway, and in a proper manner on such public highway, even though he be then intoxicated, shall be convicted for murder if death result wholly from the carelessness or negligence of the driver of another car which collides with that driven by the accused."
In the case before us, and any such case, the trial court should submit to the jury the issue as to whether the accident or mistake resulted from the fact of the driver being under the influence of intoxicating liquor, or from a cause or causes not reasonably growing out of, or resulting from such condition, and the jury should be told to acquit if the latter condition be true. If because of a blow-out the car leave the road and go into a ditch and strike some person and cause death, it would be a fact issue for the jury to pass upon as to whether the rate of speed or the manner of driving or handling the car, resulting from the fact that the driver was under the influence of intoxicating liquor, caused or contributed to cause the blow-out. So also of any kind of an accident resulting from the condition of the driver of a car by an intoxicated operator, when death results from an accident.
Also in a case such as the one before us, when the issue as to whether the accused was under the influence of intoxicating liquor was sharply contested, and where his intent would necessarily be involved, and the degree of his guilt, if any, be affected and measured by his intent, coupled with his act, the trial court should give to the jury some definition of the term "under the influence of intoxicating liquor" such as that the jury must find and believe that the accused was under the influence of such liquor to an extent that it would impair his ability to care for himself, or to guard against harm to others, in order to make him criminally liable.
The states motion for rehearing will be overruled.
Overruled. *Page 371