ON MOTION FOR REHEARING.
HAWKINS, Judge.The judgment of conviction was reversed on June 6, 1934, for the reasons stated in the opinion of that date, but the indictment was held good. Appellant filed a motion for rehearing in which it is strongly urged and argued that we were in error in so holding, and we are asked to again review that question and hold the indictment bad.
It becomes our duty to construe and apply the law giving effect, if possible to all the provisions thereof, and this is no easy matter where some provisions are in apparent conflict with others.
Omitting formal averments, the count of the indictment under which appellant was convicted alleged that appellant “* * * did then and there unlawfully drive an automobile upon a public street within the limits of an incorporated city within *233this State, to-wit: Grape Street within the limits of the City of Abilene, Texas, while he the said Tom Jones was then and there under the influence of intoxicating liquor, and he the said Tom Jones did then and there while so driving said automobile as aforesaid, through mistake and accident kill Eli Perkins by then and there driving said automobile into and causing it to collide with another automobile in which the said Eli Perkins was then and there riding thereby jarring and bruising 'the body of him, the said Eli Perkins, causing injuries to the body of him, the said Eli Perkins, from which injuries the said Eli Perkins then and there died.”
It is appellant’s contention that article 42 P. C. has no application to a state of facts here present, and that under our statute defining murder (article 1256 P. C.) an indictment to be sufficient to charge such offense, must allege that the killing was voluntarily — intentionally—done. In support of his position appellant refers us to Crutchfield v. State, 110 Texas Crim. Rep., 420, 10 S. W. (2d) 119; Miller v. State, 112 Texas Crim. Rep., 125, 13 S. W. (2d) 865; Bookman v. State, 112 Texas Crim. Rep., 233; Shannon v. State, 36 S. W. (2d) 521. It may be conceded that in the ordinary case of murder where the facts incident to the killing do not call into operation some other article of the statute appellant’s contention would be sound. That it is not always sound is demonstrated in White-side v. State, the opinion on the first appeal being found reported in 111 Texas Crim. Rep., 116, 12 S. W. (2d) 218, and on the second appeal being reported in 115 Texas Crim. Rep., 274, 29 S. W. (2d) 399. In that case under the facts article 1206 P. C. became operative, which article reads in part as follows: “Although it is necessary to constitute homicide that it shall result from some act of the party accused, yet if words be used which are reasonably calculated to produce and do produce an act which is the immediate cause of death, it is homicide. * * *”
It was held that an indictment which alleged facts bringing the killing within the purview of said article was sufficient to charge the offense of murder.
Article 42 P. C. is a general statute which reads: “One intending to commit a felony and who in the act of preparing for or executing the same shall through mistake or accident do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually committed.”
It was the State’s contention that appellant, while intoxi*234cated, was driving an automobile upon a public street in the City of Abilene, Texas, which act of drunk driving was a felony under the provisions of article 802 P. C., and that while in the act of drunk driving, by accident, but as a direct result of such drunk driving, he killed deceased by driving his (appellant’s) automobile into one in which deceased was riding. If appellant had “intentionally” driven his automobile into the one occupied by deceased thereby causing his death appellant would have been guilty of murder. Art. 42 says that if while executing a felony one by accident does a thing which, if done intentionally, would be a felony, he shall receive the punishment for the felony actually committed. In drawing the indictment the averments were appropriate in making article 42 P. C. operative, and we must adhere to our original opinion in holding said indictment sufficient, following Norman v. State, 52 S. W. (2d) 1051.
It is true, as urged by appellant, that when said art. 42 became a part of our Penal Code, no such thing as automobiles were known, and that application of said article in the reported cases was where a person intended to kill one party and by accident killed another, but we find ourselves unable to ignore said article under the facts presented in the present record, or to say that it was the intention of the Legislature that said article should have application under some particular state of facts but not in others, where each state of facts appears to fall under the provisions of said statute.
Article 1149 P. C. provides as follows :
“If any driver or operator of a motor vehicle or motorcycle upon the public highways of this State shall wilfully, or with negligence, as is defined in this title in the chapter on negligent homicide, collide with or cause injury less than death to any other person upon such highway, he shall be held guilty of aggravated assault and shall be punished accordingly unless such injuries result in death, in which event he shall be dealt with- under the general law of homicide.”
Appellant contends that said article defines the offense of injuring or killing one with an automobile, and fixes the punishment therefor; that it is a special statute dealing with injuries or death by automobiles, and therefore article 42 P. C. has no application. We cannot agree that appellant’s position is sound. Art. 1149 takes no account of such injury or death resulting during the commission of a felony by accused.
It is further appellant’s contention that under said art. 1149 if the injury was intentionally inflicted by the use of an *235..automobile and death- results- it would be murder, but if negligently done it would be negligent homicide. Appellant then reasons that the driving of his automobile while he was drunk 'was negligence per se, and therefore, not intending to kill deceased, appellant would be guilty only of negligent homicide. Again appellant overlooks the fact that he was engaged in the commission of a felony — drunk driving — and that article 1241 P. C. is a direct and complete answer to his suggestion that he would be guilty of negligent homicide. Art. 1241 is found in the chapter of the Penal Code relating to homicide by negligence. Other articles in the chapter undertake to set out the elements of negligent homicide, and then as though to exclude any danger of misapprehension we find art. 1241 which reads as follows:
“When one in the execution of or in attempting to execute an act made a felony by law shall kill another, though without an apparent intention to kill, the offense does not come within the definition of negligent homicide.”
The above quoted article seems to make it clear that appellant would not be guilty of negligent homicide. It, however, by no means supports the view that accused would not be guilty of some higher grade of homicide. The application of article 42 P. C. seems to solve the question.
Appellant’s motion for rehearing is overruled.
Overruled.