Appellant was convicted of the offense of driving an automobile on a public highway in Hidalgo County while intoxicated, and his punishment was assessed at confinement in the state penitentiary for a term of two years.
Appellant's first contention is that the evidence is insufficient to warrant and sustain his conviction. The record shows that on the night of July 11, 1936, appellant while driving an automobile on a public highway in Hidalgo County ran into an automobile driven by Ben and George Stohler; that as a result of the collision George Stohler was killed and Ben Stohler and appellant were injured. The State's testimony further shows that at the time the appellant was taken to the hospital his breath carried the odor of whisky. In his written confession appellant admitted that on said night he had imbibed a sufficient quantity of whisky to make him "groggy." We think this testimony was sufficient to justify the jury's conclusion of appellant's guilt. Under art. 706, C. C. P., 1925, the jurors are made the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony, and this court on appeal will not disturb their verdict unless the testimony when considered in its most favorable light for the State does not justify the verdict. See Roberts v. State,60 Tex. Crim. 20; Sanders v. State, 63 Tex. Crim. 258.
In his motion for a new trial appellant for the first time complains of the court's charge. Art. 658, C. C. P., provides that before the charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and shall present his objections thereto in writing, distinctly specifying each ground of objection. The record before us fails to show that any objection was made to the court's charge in the manner and within the time prescribed by law. Hence the question sought to be raised here is not properly brought before this court. If appellant was not satisfied with the court's charge or the manner in which he submitted the law applicable to the *Page 641 case, he should have filed his written objections thereto as provided by law.
Appellant's next ground of complaint is that art. 802, P. C., is of no force and effect because the penalty prescribed therein for said offense is in the alternative, in this, that it prescribes the maximum punishment for a felony and the maximum punishment for a misdemeanor. In other words it leaves it optional with the jury whether they will assess the maximum penalty of two years or the maximum penalty of ninety days in jail. His contention is that the statute is in conflict with Sec. 28 of Article I of our Constitution which reads as follows:
"No power of suspending laws in this State shall be exercised except by the Legislature."
We fail to see how the said statute is in conflict with the article of the constitution referred to. There seems to be no inhibition in the constitution against an act of the Legislature which leaves it optional with the jury to determine the kind of punishment which they may assess against an offender so long as they fix the punishment within the limits prescribed by law. It seems that the legislature has the right to prescribe maximum and minimum penalties for an offense leaving it to the jury to determine which penalty to assess.
Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.
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.