*77ON MOTION FOR REHEARING.
LATTIMORE, Judge.— The indictment in this case is set out in our original opinion, and was correctly held to charge the offense of murder, but we fear it was incorrectly held that such an indictment would include negligent homicide as well as other grades of that offense. The indictments in the cases of Crowder v. State, 78 Texas Crim. Rep., 344; Garcia v. State, 91 Texas Crim. Rep., 9; Hampton v. State, 98 Texas Crim. Rep., 161, and Carnichael v. State, 100 Texas Crim. Rep., 151, were not in form such as appears in the case before us, and,— as is said in some of the cases, — an indictment for murder in the usual form may be held, under appropriate facts, to include negligent homicide, but we find no case so holding when the indictment is in form such as here appears. It will be observed that here it is not charged in the ordinary and usual manner and form for charging murder, but alleges, in substance, that the accused drove and operated an automobile on a public street, in an incorporated city, while he was under the influence of intoxicating liquor, and while so driving and operating said automobile he did then and there through accident and mistake kill one Lena Pagel by driving said automobile into and causing it to collide with another automobile in which Lena Pagel was riding, thereby jarring and bruising the body of Lena Pagel, and causing her death.
Art. 1241 of our Penal Code definitely says that 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. Clearly appellant, if driving a car on a street in San Antonio while intoxicated, was committing a felony. We are compelled to hold that a definite pronouncement like Art. 1241 must control the general statutes regarding included crimes. In Norman v. State, 121 Texas Grim. Rep., 433, discussing a similar indictment, we said:
“We think this sufficiently alleges that appellant was engaged in doing that which in law is a felony, and that while so doing he killed another, and this, though without apparent intention to kill, would under Art. 1241, of our Penal Code remove such case from the domain of negligent homicide.”
. Again in Jones v. State, 75 S. W. (2d) 683, we said in the opinion on rehearing, after quoting Art. 1241, above set out, that the above quoted article seems to make it clear that appellant would not be guilty of negligent homicide.
*78Giving effect to the plain provisions of Art. 1241, P. C., and following the authorities cited, we are of opinion that we erred in the affirmance of this case, and in holding that the indictment herein comprehended the offense of negligent homicide. So concluding, - appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.
Reversed and remanded.