In the written argument on appellant's motion for rehearing, attention is directed to that portion of our original opinion wherein we quoted a certain paragraph of the charge as follows: "If you believe from the evidence that the defendant was driving on the right hand side of the road, and without any fault of the defendant his car struck the car in which the deceased, Fanny Casey, was riding, or if you *Page 437 have a reasonable doubt as to this, you will find the defendant not guilty." Appellant insists that we are indulging a presumption against him when we say that the jury having heard the testimony in the case would necessarily "infer" that the court meant in the charge "the right hand side of the road from the standpoint of appellant." The charge quoted is the third paragraph in subdivision 4 of the instructions. In the first paragraph of said subdivision 4 the court told the jury if they believed appellant was driving on Highway No. 7, "* * * and you further believe beyond a reasonable doubt that he was notdriving on the right hand side of the highway, in the directionhe was going," etc. This makes it perfectly plain what the court meant by the right hand side of the road. The second paragraph of subdivision 4 again uses the language "the right hand side of the road"; and immediately following that is the third paragraph of said subdivision 4, the one quoted, in which the same language is again used. We observe that taking the whole of subdivision 4 together the jury could not possibly have been misled, or misunderstood the instructions.
Doctory Sealy, giving evidence as an expert, testified, as shown by bill of exception No. 9, that it was "* * *a well-known fact that when a man was in an intoxicated condition, when he meets with a great shock like two cars running together, one of which he was in, and that it sometimes has the effect of bringing a man to his senses or sobering him up, and that his opinion is based upon his opinion that a man could be sobered up by a shock from being thrown from a horse or any kind of a shock." In his motion for rehearing appellant says the main object of such bill was to complain that the doctor was permitted to testify as to the effect of a shock resulting from cars running together, like the collision shown in the present case. We think there can be no question that the doctor was properly permitted to testify that when a man in an intoxicated condition meets with a shock of any kind it would have a tendency to sober him up. Perhaps the witness should not have been permitted to use the collision of two cars as an illustration; but the bill of exception shows that appellant "objected to each word and syllable and every portion" of said evidence. That part of the evidence now urged as inadmissible was not by the objection segregated from the part which was unquestionably admissible, and therefore, we are compelled to hold that the bill presents no error. See Branch's Ann. P. C., sec. 211; 4 Texas Jurisprudence, sec. 212; Middleton v. State, 86 Tex.Crim. Rep., 217 S.W. 1046; White v. State,110 Tex. Crim. 206, 7 S.W.2d 1086.
Appellant further contends that the conviction should not be permitted to stand because the physical facts show that the deceased's car was on the wrong side of the road at the time of the collision and that if it had been on the proper side of the road no collision would have *Page 438 occurred. This contention has made it necessary to again examine the facts, which we have patiently undertaken to do. It may be admitted that the evidence does show that after the collision occurred both cars were standing on the west side of the road, which was the side upon which appellant rightfully belonged. On the other hand, the evidence is in direct conflict as to the movements and positions of the cars immediately before and at the movement of collision. The testimony of Casey, one of the occupants of the car which was struck by the one appellant was driving, and that of Cason and Werner, — eyewitnesses and apparently disinterested witnesses — supports the state's contention that the accident was occasioned by appellant driving on the wrong side of the road; the evidence of appellant and that of Hart, who was in the car with appellant, is positive on the point that appellant was on the side of the road where he belonged, and that Casey's car was on the wrong side. The trial court recognized that the jury must decide the issue thus made and submitted his instructions in such language as called for such decision. The jury having settled the issue in favor of the state on conflicting evidence, this court would not be warranted in disturbing the verdict. The same may be said in regard to the issue of whether appellant was intoxicated at the time. The evidence on that issue is also in conflict, but the jury has determined it against appellant.
Our review of the matters urged upon rehearing leads us to believe the motion should be overruled, and it is so ordered.
Overruled.