Appellant insists that we have heretofore failed to consider his contention that a conviction for negligent homicide cannot be sustained because of the fact a witness for the State testified that appellant was intoxicated when he arrested him at the scene of the accident. The testimony of appellant and his witnesses was to the effect that appellant was not under the influence of intoxicating liquor. In short, an issue was raised and the testimony warranted the conclusion that appellant was not intoxicated. Appellant is correct in his contention that he would not be guilty of negligent homicide in the event the accident was due to his negligent operation of his automobile while he was under the influence of intoxicating liquor. We quote from Collins v. State, 94 S.W.2d 443, as follows:
"If the appellant at the time of the accident was driving her car upon a public highway while intoxicated, she was guilty of *Page 245 a felony under article 802, P. C. 1925; and, if appellant as a direct result of her intoxicated condition drove her automobile into the car on which K. C. Thompson was working and killed him, she would be guilty of murder. Whether or not appellant was intoxicated, and whether or not her act in driving her car into the car on which deceased was working was the direct result of her drunken condition, were issues of fact to be determined by the jury under an appropriate instruction from the court. The court properly submitted said issues to the jury, who decided them adversely to appellant. We are of the opinion that the testimony is sufficient to sustain the jury's conclusion. See Burton v. State, 122 Tex.Crim. R., 55 S.W.2d 813; Norman v. State, 121 Tex.Crim. R.,52 S.W.2d 1051; Jones v. State (Texas Cr. App.) 75 S.W.2d 683.
"The appellant's act does not come within the statute on negligent homicide, for the reason that the act of driving an automobile while intoxicated is a felony and not a misdemeanor. See article 1240, P. C. 1925."
There was no averment of intoxication in the first count of the complaint and information, and the acts of negligence there charged are not shown by the averments to be related to intoxication. Appellant's own testimony made out a case of negligent homicide of the first degree. The trial was before the court without the intervention of a jury. The trial judge had evidence before him which would have supported the conclusion that appellant was not intoxicated and that the accident, as detailed by appellant in his testimony, was due to the negligent operation of the automobile. Under the circumstances, we are not impressed with the view that we should assume that the trial judge found appellant was intoxicated and that his intoxicated condition was the proximate cause of the homicide. If the testimony had disclosed without controversy that appellant was intoxicated and that such condition was the cause of the collision a different question would be presented. Stated in another way, the authorities appellant cites in support of his position, and from one of which we have heretofore quoted, might be given application.
While the question as to the authority of this court to amend the judgment was not discussed in the opinion on motion for rehearing, it was thoroughly dealt with in the original opinion and, we believe, properly disposed of.
We think the case of Simmons v. State, 3 S.W.2d 449, is authority against appellant's contention that Article 1231, *Page 246 P. C., defining negligent homicide of the first degree, is invalid.
The application for leave to file second motion for rehearing is denied.
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.