ON MOTION FOR REHEARING.
KRUEGER, Judge.*633Appellant has filed quite a lengthy motion for. rehearing in which he contends that the evidence is insufficient to justify and sustain his conviction. He asserts, and properly so, that there are only two ultimate issues of fact in this case: First, was appellant, at the time of the commission of the alleged offense, driving his automobile at a speed in excess of 55 miles per hour; and second, that while so doing did he, by carelessness or negligence, cause his automobile to collide with the car being driven by Mr. Beck, who was accompanied by Miss Mary Alice LeSeuer, resulting in her death?
We think the questions presented by .appellant in his motion for rehearing have been fully discussed in the original opinion. However, with the view of more clearly demonstrating the correctness of our holding, we make the further observation: The Mexican, whom appellant passed on the highway about one and one-half miles from the scene of the collision, testified that the car passed him traveling at about 80 miles per hour. Appellant contends that this is too uncertain to show, beyond a reasonable doubt, that he was driving at a speed in excess of 55 miles per hour at the time of the collision, as charged in the indictment. But, what about the circumstance proven showing the result of the collision? The proof shows that appellant struck the Beck car with such tremendous force that the impact threw it 73 steps across the road, over a ditch, through a wire fence and against a tree. Mr. Beck testified that he was driving about 40 miles per hour and that the car driven by appellant overtook him. This demonstrates to any reasonable mind that the car was traveling at a very high rate of speed. This supports and makes more certain the testimony of the Mexican as to the speed at which the car was moving.
Second, was appellant operating his automobile at the time and place in question in such a manner as a reasonably prudent person would not have done under the same or similar circumstances? If so, he was guilty of negligence; and this was an issue for the determination of the jury from all the facts and circumstances submitted to them under the ruling of the court.
Appellant complains of the evidence showing that he had a case of beer in the trunk of his car. He contends that the presence of beer in the car did not tend to establish negligence. He seems to overlook the fact that in the first count of "the indictment he was charged with driving an automobile on the public highway while intoxicated and that while under the influence of intoxicating liquor he did then and there, through mis*634take or accident, kill Mary Alice LeSeuer. Under this count of the indictment the evidence was admissible, to say nothing of the fact that it was a part of the res gestae. It is true that the court, at the conclusion of all the evidence, submitted the case to the jury on the second count alone, but so long as the State, in the development of the case, proceeded on both counts, the evidence was admissible.
Appellant next contends that we erred in not sustaining his Bill of Exception No. 3 relating to a certain question propounded to him by the District Attorney, which was objected to and which objection was sustained; whereupon the private prosecutor remarked: “Let the bill show that no response was made by the witness to the question.” While the question should not have been propounded, still, in view of the fact that the court promptly sustained the objection and the witness had not answered the question, no reversible error is shown. The request on the part of the private prosecutor to let the bill show that the witness did not answer the question was, in our opinion, proper: first, to let the bill reflect just what did occur; and second, it would be useful in the event of a bystanders’ bill.
Believing that the case was properly disposed of on the original submission, the motion for rehearing is overruled.
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.