The record having been perfected, the appeal is reinstated and the case considered on its merits.
The information and complaint embraced two counts, the first charging negligent homicide of the first degree and the second, negligent homicide of the second degree. The verdict of the jury was as follows: "We, the jury, find the defendant guilty as charged and assess his punishment at five months in the county jail." The judgment of the court followed the verdict of the jury and failed to show whether appellant was guilty of negligent homicide of the first or second degree. The transcript fails to show that a charge was given to the jury. Appellant contends that the verdict is fatally defective in that it is not shown whether the conviction was for negligent homicide of the first or second degree. Although we have no charge to aid us in determining which count of the complaint and information was submitted to the jury, it is observed that appellant made a motion to quash both counts on the ground, among others, that they were vague and indefinite. We gather from the order of the court relative to the motion that the first count was quashed and that the motion was overruled as to the second count. It seems to follow that only the count charging negligent homicide of the second degree was submitted to the jury. This count was amply supported by the evidence, It being shown that appellant, while driving at approximately seventy miles an hour on the Katy Highway in Harris County, negligently ran into the automobile occupied by Mrs. H. G. Cole and fatally injured her. Not only does the testimony support the second count but the record discloses that the first count had been quashed. Under the decision of this court in C. E. Evans v. State, Opinion No. 21,255, delivered January 22, 1941, (page 241 of this volume), this court is warranted in *Page 573 reforming the judgment so as to show that appellant is guilty of negligent homicide in the second degree.
Appellant contends that there is no proof in the record showing that the accident occurred on a public highway as alleged. We are unable to agree with this contention. The first witness for the State testified that the collision occurred on the Katy Highway in Harris County. A deputy sheriff testified that he was on the Katy Road when the collision occurred, where he had arrested a party for exceeding the speed limit. The officer referred to the road as a highway. This officer testified that a fellow officer investigated the collision while he (witness) "took charge of traffic, directed the traffic." Throughout the testimony the road is referred to as a highway. Another officer testified: "I am a deputy sheriff of Harris County assigned to the highway patrol * * * I was out on the Katy Road when a collision occurred in which Mrs. Cole was injured. At the time of the collision we were stopped right there on the Katy Road. I had stopped a fellow because he was speeding and was giving him a ticket."
In 21 Texas Jurisprudence, page 529, it is said: "The term 'highway' denotes a road over which the public have a right of travel, as distinguished from a way which some persons, but not the public generally, may use." We take the following from 3 Words and Phrases, Third Series, page 1108: "The term 'highway' imports in law a road, the use of which is in the public." We think the proof sufficient to show that the highway in question was a public highway. See Blackman v. State, 20 S.W.2d 783, and Smith v. State, 92 S.W.2d 1046.
A careful examination of all of appellant's contentions leads us to the conclusion that reversible error is not presented.
The judgment is reformed so as to adjudge appellant guilty of negligent homicide of the second degree.
As reformed, the judgment is 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.