ON appellant’s motion for rehearing.
DAVIDSON, Judge.The information charged two unlawful acts as constituting negligence on the part of the appellant. These were: (a) the operation of the automobile at a rate of speed in excess of thirty miles an hour, as denounced by Sec. 8 of Art. 827a, Vernon’s P. C., and, (b) the failure to obey and stop at a stop sign, or, as it is sometimes called, “running a stop sign.”
Appellant attacks the sufficiency of the state’s pleading to charge the offense of running a stop sign.
A determination of that question rests upon whether the conviction was based upon that feature of the information.
The case was tried by the court, a trial by jury having been waived. The court entered a general judgment, finding appellant guilty without specifying upon which unlawful act, as constituting negligence, guilt was predicated.
In such cases the judgment will be applied to the act finding support in the testimony. So then if the facts support a finding by the trial court that at the time of the collision appellant was driving his automobile at a rate of speed .in excess of thirty miles per hour, the conviction may be rested upon that testimony, without reference to whether appellant was also guilty of running a stop sign. We look, then, to the facts as to the rate of speed.
From the state’s standpoint, there was no eyewitness to the collision. The physical facts, as shown by the testimony of the witnesses for the state, show that the brakes were applied upon the car appellant was driving for a distance of thirty feet before the collision; that the car in which deceased was riding “skidded sideways over against this curb and out into the vacant lot” after the impact or collision; that the car which appellant was driving skidded, after the collision, down the street against the curb, with some of the wheels over the curb. In addition, it was shown that soon after the collision appellant made the statement that the reason he did not stop at the stop sign was that he was driving so fast he did not see the sign.
*97Under the facts here presented, the trial court was authorized to find that, at the time of the collision, appellant was driving his automobile at a rate of speed in excess of thirty-miles per hour.
The information alleged that appellant brought about the death of deceased “by then and there causing and permitting his said automobile to collide with and strike the said George Michael Conner, who was then and there riding in another automobile, thereby injuring and jarring and bruising and causing injuries to the body of the said George Michael Conner.......”
Appellant insists that the proof fails to sustain the foregoing allegation because there is no testimony showing that the automobile struck or collided with the deceased — which proof was required under the allegation of the information.
While it is true that the information alleges that appellant caused his automobile to strike and collide with the deceased, it alleges, also, in that connection, that the deceased was, at the time, riding in another automobile, thereby causing injury to the body of the deceased.
Under such allegation, we are of the opinion that the expression found in Schultz v. State, 137 Tex. Cr. R. 164, 128 S. W. 2d 36-38, is applicable where we said:
“We are also of the opinion that the facts support the allegation that not only did he, appellant, collide with the injured party, but also that he caused an injury to her. The statute means that such collision should be made with an automobile'. It can be made by either striking the person injured on his body, or by striking such person’s automobile and causing the same to strike the body of the injured person, the intervening agency of the automobile collided with being but a further agency employed in the commission of the offense.”
See, also, Warren v. State, 140 Tex. Cr. R. 119. 143 S. W. 2d 620; Swift v. State, 143 Tex. Crim. Rep. 351, 158 S. W. 2d 775.
As supporting his contention, appellant relies upon the case of Fuller v. State, 120 Tex. Cr. R. 66, 48 S. W. 2d 303. That case arose out of a prosecution for failing to stop and render aid. Art. 1150, P. C. Under that statute, the offense is committed by failing to stop after striking a person with an auto*98mobile or colliding with a vehicle containing a person. Only the first provision mentioned was charged in that case, and of necessity the proof was required to meet that allegation.
The allegation in the instant case that the deceased was riding in an automobile at the time of the collision distinguishes this case from the holding in the Fuller case.
Believing that a correct conclusion was reached originally, the motion for rehearing is overruled.
Opinion approved by the court.