Defendant was convicted for driving an automobile upon a public highway while intoxicated. Punishment, one year in the penitentiary.
The prosecution is under Chapter 23, 2nd C. S., 38th Leg., — A car driven by defendant collided with one driver by J. E. Thomas. The State's evidence warranted the jury in finding that defendant was intoxicated at the time. If the testimony offered by defendant had been accepted as true, a verdict of acquittal would have been justified. The jury settled this controverted issue, and under the facts presented we would be unauthorized to disturb their finding.
Witness Thomas testified that the car driven by defendant was "zigzagging" as it approached the point of collision; that after the accident, and while talking to defendant witness saw that defendant was intoxicated. This latter statement was objected to as a conclusion of the witness. The objection is without merit. Stewart v. State, 38 Tex.Crim. Rep., 44 S.W. Rep. 505; Henderson v. State, 49 Tex.Crim. Rep., 91 S.W. Rep. 569; Underhill's Cr. Ev. (3rd Ed.) Sec. 278. However, during his examination, Thomas recited many details of defendant's conduct supporting the statement that he was intoxicated. What has been said applies to the objection urged against the evidence of the witness Caldwell.
We perceive no objection to the reception in evidence that immediately after the accident defendant said he had fifteen hundred dollars to fight the case. It was res gestae of the accident, and throw light on defendant's condition of sobriety or otherwise.
Complaint is make that upon cross-examination, over objection, defendant was compelled to answer that the next day after the accident he had paid a fine in connection with the transaction in question. The grounds of objection were that no connection was shown between the fine and the offense upon which this prosecution is based, but in effect got before the jury defendant's admission that he had violated the law. The grounds of objection cannot be taken as a certificate that the facts which form the basis of the objection are true. (See Branch's Ann. Tex. P. C., Sec. 209). The bill gives us no further information than already shown. The inquiry objected to may have become pertinent by some statement of defendant on direct examination. The bill as presented shows no error. (Sec. 207, Branch's Ann. Tex. P. C.).
The judgment is affirmed. *Page 501