The record having been corrected, the appeal is reinstated and the case considered on its merits.
The prosecution proceeded under Article 42, P. C., which reads 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 quote the charging part of the indictment, as follows:
"Joe Totten, on or about the 23 day of July, A.D. one thousand nine hundred and thirty-six and anterior to the presentment of this indictment, in the County of Taylor and State of Texas, did then and there unlawfully drive a motor vehicle, i. e. a truck upon a public highway, i. e. the public road leading from Abilene, Texas, to Coleman, Texas, and known as State Highway, No. 7, while he, the said Joe Totten was then and there intoxicated, and he, the said Joe Totten, did then and there, while so driving said truck as aforesaid, through mistake and accident, kill Robert Cluney by then and there driving said truck into and causing it to collide with the said Robert Cluney, thereby jarring and bruising the body of him, the said Robert Cluney, causing injuries to the body of him, the said Robert Cluney, from which injuries the said Robert Cluney then and there died."
The indictment is sufficient under the holding in Jones v. State, 75 S.W.2d 683.
The proof on the part of the State warranted the conclusion of the jury that appellant, while intoxicated, accidentally struck Robert Cluney with his truck and killed him. The testimony of *Page 64 appellant's witnesses was to the effect that he was not intoxicated at the time he drove said truck.
Appellant insists that the holding in Jones v. State, supra, is erroneous, his position being that Article 42, supra, has no application to a state of facts here present. We are constrained to overrule this contention without further discussion of the question.
Appellant excepted to the charge of the court because it failed to submit an instruction covering the law of negligent homicide. The indictment herein does not comprehend the offense of negligent homicide. Snyder v. State, 102 S.W.2d 424. The exception was properly overruled. Pope v. State, 194 S.W. 590. It might be added that the court instructed the jury as follows:
"Before you would be authorized to convict the defendant in this case, you must find and believe from the evidence beyond a reasonable doubt: first, that the defendant, Joe Totten, on the occasion in question was intoxicated, as that term has been herein defined, and: second, you must further find and believe from the evidence beyond a reasonable doubt that the intoxicated condition, if any, of the said Joe Totten on the occasion in question caused the death of the deceased, Robert Cluney; and if you have a reasonable doubt as to either of the two above propositions, you will give the defendant the benefit of the doubt and acquit him and say by your verdict not guilty."
The judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.