Conviction for murder without malice; punishment, two years in the penitentiary.
The unfortunate occurrence forming the background for this conviction was the killing of three women in an automobile accident on a public highway a short distance north of Temple, Texas, on the afternoon before Thanksgiving. The women referred to were teachers on their way to a teachers' association meeting to be held in San Antonio. Appellant was driving north on said highway, and there is no dispute but that there was a collision between the car driven by him and that occupied by the three teachers, as the result of which collision the said women were killed.
We see no good to come from attempting to set out at length the facts appearing in this record, which are in a condition of hopeless and irreconcilable conflict on the question of whether or not appellant was intoxicated at the time of the collision. A number of witnesses testified that he was, and to facts showing that he was in possession of a bottle of whisky *Page 399 at the time and threw it away, and to his acts and conduct at the time which, if believed by the jury, would be amply sufficient to justify them in concluding him to be intoxicated. On the other hand, a number of witnesses testified that they saw and talked and were in company with appellant at and before and after the time of the collision, and in their opinion he was not intoxicated. The duty is placed by statute upon the jury to pass on the weight of the testimony and the credibility of the witnesses, and this court does not feel itself called upon to interfere with and overturn the judgment of the jury in any case of conflict of facts, unless we be convinced there are not sufficient facts in the record which, if believed, would sustain the conviction. We can not agree to such a conclusion in this case.
There is some complaint of the overruling of appellant's motion to quash the count of the indictment under which the conviction was had. Appellant is of the impression, and so indicates in his motion, that the present law forbidding the driving of an automobile upon a highway requires that it be alleged and proved that the driver of said car was intoxicated. The indictment in the instant case charged that the appellant was under the influence of intoxicating liquor at the time of the alleged driving and collision. The exact point was involved in the case of O'Conner v. State, 88 S.W.2d 1048, and was decided adversely to appellant's contention.
If we understand this record appellant's bills of exceptions 1 to 5 inclusive related to and are based upon the proposition that his motion to quash the indictment, and the count in same upon which conviction was had, should have been sustained. We have just disposed of this proposition in our reference to his motion to quash said indictment.
Appellant's bill of exceptions No. 6 complains of the refusal of the court to respond to the exceptions taken by him to the charge of the court. Said exceptions have been examined by us, and we are not able to agree with appellant that any of them are sound. The charge of the court in the matters complained of seems to us to have been correct.
Appellant's bill of exceptions No. 7 complains of the refusal of the court to instruct the jury not to consider the testimony given by A. J. Rose. The bill reflects the following proceedings: Witness Rose testified that on the night of the alleged accident in which said ladies were killed on a highway just north of Temple, witness heard appellant say that "He supposed he was the cause of a bad accident where some *Page 400 people were killed — they told him so." It is further shown that after this testimony was given appellant's attorney moved to exclude same because it was two hours after the accident, and embodied in it hearsay. The State contended that the statement was an admission against interest made by appellant, and the court overruled appellant's motion, to which he asked that an exception be noted. Appellant then further examined the witness, who was then excused. Thereafter appellant had the witness recalled, and asked him if appellant was not under arrest at the time he made the statement above referred to, and witness answered in the affirmative. It is shown in the bill that appellant then moved that all of the testimony of Mr. Rose on the point mentioned be excluded from the jury because of the fact that appellant was under arrest and not warned. We do not regard the above complaint as having merit. Before Rose was put on the stand by the State in rebuttal appellant had put on Hoherd, chief of the Temple fire department, who testified to seeing appellant on the same occasion, — afterward testified to by Rose, — and Hoherd said in his opinion appellant was not under the influence of intoxicating liquor at said time, his opinion being formed from hearing appellant talk, seeing him walk, etc. Hoherd said that some of the State patrol men and other officers were with appellant at the time. Again he said: "A couple of State patrol men had him in charge." Regarding what occurred when appellant and the officers arrived, he said: "They took him in the station." Again he said: "He wasn't drunk when they had him down there." Again: "All I know is when they brought him to town," and again: "I don't know how long it was after they brought him into that place until the sheriff came after him * * * twenty or thirty minutes after they brought him in." Not long after the above testimony was given, the State called Mr. Rose to give his judgment as to whether appellant was drunk when brought to the fire hall in Temple. As above stated, this was the same time and place referred to by defense witness Hoherd. It is not necessary for us to say more than that appellant's learned counsel could have hardly helped being fully aware that appellant was under arrest during the entire time embraced in all the testimony of Rose, and before the direct question concerning arrest was asked.
Finding no reversible error in the record, the judgment is affirmed.
Affirmed. *Page 401
ON MOTION FOR REHEARING.