(dissenting).
I am unable to agree with my associates and find it necessary to restate the case in order to make clear my dissent.
It is alleged that on the 22nd day of December, 1950, the appellant was in Harris County “engaged in the performance of an unlawful act, to-wit, driving and operating a motor vehicle, to-wit, an automobile, on a public highway there situate, * * * at a rate of speed in excess of sixty miles per hour,” and while so driving negligently and carelessly caused the death of Madeline O. Howard, by colliding with and striking her, crushing and mangling and bruising her body, from which she died.
It is further alleged that he was negligent in that he failed to guide the vehicle away from the deceased, who could have been seen in time to avoid running into and over her, had he been looking in the direction he was traveling.
Count No. 2 in the indictment alleged, in similar language, that the accident occurred while he was engaged in the per*455formance of a lawful act. The language as to negligence was the same.
The first count of the indictment is brought under Article 1239, Vernon’s Ann. P.C. which applies when the act is committed while the offender is engaged in or attempting to engage in the commission of an unlawful act. The punishment may be by fine “not exceeding $3,000.00, or by imprisonment in jail not exceeding three years.” See Art. 1242, Vernon’s Ann. P.C.
The offense alleged in the second count of indictment is defined by Article 1231 of Vernon’s Ann. P.C. and the punishment may be by a fine not exceeding $1,000.00, or by imprisonment not exceeding one year.
Appellant testified in his own behalf that he operated a garage at his home, 10402 Palestine in Jacinto City, a suburb of Houston; that he had worked at his garage all day, left late in the afternoon to go to a barber shop, and after visiting the shop he was on his way to Greens Bayou. As he reached the vicinity of Price’s Service Station, where the tragedy occurred, he said that very suddenly the deceased and her children appeared before him, “like a bunch of deer.” A car meeting him had bright lights on and the impact was so sudden that he had no time to use his brakes and did not do so until the car had coasted down some distance. He said there was no traffic light there and no mark indicating a crossing for pedestrians. He went to a telephone and reported the matter to the sheriff and remained at the scene until he was taken into custody. His testimony, if believed by the jury, would relieve him of liability under the charge of negligent homicide of the first degree.
The state introduced a number of witnesses who testified that they were present within view of the accident and saw the car strike the deceased and her two children. A Mr. Price testified as an eye witness to the occurrence. His attention was attracted by the noise. He looked up immediately and saw appellant’s car moving on east. He said: “I saw some bodies go up in the air in front of the car. * * He ran to the parties and then gave the alarm to the sheriff’s department. He identified the deceased and her children, whom he knew, and described the positions in which the bodies were left and the injuries inflicted.
C. W. Garrett was a customer at Price’s Service Station. *456He was standing on the outside waiting for his car to be serviced. His testimony on the subject of negligence was that he was attracted to the automobile coming down Market Street going toward Greens Bayou. He estimated the speed of the car at sixty or sixty-five miles per hour. He watched it as it passed him. He heard a terrible noise, looked up and observed the accident as it happened at the point of impact. He said the automobile was in the clear as it approached and had the head lights on. He heard the noise, looked up and saw the people in the air, three of them. The car passed on by, pulled to the right and stopped. He then described the positions of the bodies and, to some extent, the injuries.
On cross-examination he said the automobile driven by appellant appeared to be in the center lane, next to the center of the highway on the right hand side in the direction in which it was going.
J. D. Robinson, who. lived on the Maxey Road, testified in behalf of the state that he was at the intersection of Market Street Road and Maxey Road, in an automobile, that he saw no other automobile on Maxey Road at the time. He had come to the Market Street Road, stopped his car and from that point he saw appellant’s car before the accident and observed that it was coming at a good speed, which he estimated to be seventy ihiles per hour. He was looking at the car when the accident occurred and saw the people go straight up into the air. He said: “I did not see them at all until after they were hit.” He said it was just getting dark and appellant had his lights on. He saw no other car going in the Same direction and only two other cars in the vicinity.
Paul V. Newcomb, another witness produced by the state, said he witnessed the accident. He was stopped at Maxey Road waiting to cross the street. He was in a pickup truck. His attention was attracted to appellant’s car because of the high rate of speed it was going. He had a clear view of the car as it came towards him and there was nothing to obstruct his view. He says further, “Yes, as my attention was attracted to this automobile I continued to watch it. Yes, I did see the accident. No, I did not see any pedestrians there before the accident. For a split second before I heard the noise I saw the headlights play on a lady. Yes, that was the person struck, the mother.” He testified, further, “At the time I saw her she was not moving she seemed to be frozen, standing still, to the best of my *457judgment. It was just a split second I couldn’t say how far it was from her, practically upon her. Yes, I said I saw her from the headlights of this automobile. When this automobile struck the woman I didn’t see the children I saw the woman only. I saw her hit and go up in the air and saw three bodies go up. and scatter.”
Testifying in his own behalf, appellant said that he had traveled from his home one-half mile to the place of the accident ; that he had been on the road, including stops, fifteen minutes and that he was not traveling faster than forty to forty-five miles per hour at the time of the collision.
It will thus be seen that the state made its case under the first count and sought to convict him of homicide in the second degree. The jury found him not guilty of this count and thus eliminated the only controverted issue which could support the finding of negligence. The appellant’s testimony as to how the accident occurred is corroborated by several eye witnesses introduced by the state and does not show negligence on his part, unless negligence could spring from driving at an unlawful speed. The jury having found against the state on this issue, there is nothing to support the conviction for homicide of the first degree.
My conclusion is that the evidence records an unavoidable accident that could come to anyone. It is a very serious accident but the seriousness of it, resulting in three deaths, adds nothing to the facts of guilt or innocence of the party charged.
I respectfully dissent.