ON MOTION FOR REHEARING. Appellant complains because of the court's failure to charge the jury, in substance, that it was necessary to find that the appellant knew that he had struck the injured girl, at the time she received her injuries, before they could convict him of failing to stop and render aid to her. Usually this is a sound doctrine, but we do not think it is applicable in this case. Appellant himself testifies that he was "crazy drunk;" that besides some beer, he had drunk about a gallon of wine; that he did not know what he was doing, although it was broad daylight; that he did not see the injured party and her companion who were on this narrow bridge; that he had part of a fence hung on his truck at such time, and did not know that such fence was on his truck. Other witnesses testified that he was drunk immediately after this accident. It is apparent *Page 441 that appellant's failure to know that he had struck the injured party, if such failure there was, — according to the whole testimony, — was on account of the fact that he was "crazy drunk," and, under the statute, such intoxication could not be used except in a possible mitigation of the punishment, and we find that the careful trial court gave an exhaustive charge thereon, embodying all the rights guaranteed him by the law under such circumstances. We think the trial court went as far as it was proper in thus embodying such defense as laid down by Art. 36 of the Penal Code.
We do not intend to hold herein that it is not necessary for a person to know that he has struck some one with an automobile before the duty arises to stop and render aid to such stricken person. What we do hold in this particular instance is that the testimony of the witnesses, including the appellant himself, is that he was drunk, and his defense was that he did not know what he was doing, and did not know he had struck the girl, and our holding is that his lack of knowledge having arisen because of his voluntary intoxication he can not now free himself of blame, but such intoxication can only be used in mitigation of the punishment, provided the jury see fit to mitigate the same, and not used for the purpose of showing lack of knowledge of the striking of the injured girl.
We notice that the trial court failed to carry out the provisions of the indeterminate sentence law in pronouncing sentence upon the appellant. Vernon's Ann. C. C. P., Art. 775. The sentence will therefore be reformed, and the appellant is thereby sentenced to serve a term in the State penitentiary of not less than one hour nor more than one year and one day, and with the sentence as thus reformed, after a careful re-examination of the record, this motion is overruled.