ON MOTION FOR REHEARING
GRAVES, Presiding Judge.Appellant still insists that the statute herein under consideration is void for uncertainty and that one is not able to ascertain therefrom what offense he might commit by failing to comply therewith relative to the utilization of a muffler on a motor vehicle.
The statute defines a muffler as “a device through which the escaping gases of the motor of a motor vehicle or motorcycle pass, designed to muffle or minimize the noise produced by the operation of such motor,” and also to prevent excessive or unusual noises, annoying smoke, and the escape of gas or steam.
In this day and time with millions of automobiles equipped with internal combustion engines traveling on the streets every hour throughout the day and night all over the country, it seems to us that practically all persons are familiar with the common sound of automobiles as the explosions utilized therein pass through the ordinary muffler. If it be a matter of common knowledge as to what those sounds are, measured by one’s power of listening and not by the results of technical measure*411ments, then we think that any person should know what the usual noise is that is made by such motors. If it be a matter of common knowledge, then the unusual noise could be established by any person familiar with the usual noise.
We think this matter should be evidenced by any person familiar with the sound of an automoblie as it is propelled upon the streets or highways by its own internal combustion.
We find an analogy in Article 474, P.C., in which a person should be punished who uses loud and vociferous, or obscene, vulgar or indecent language or swear or curse, or yell or shriek, *** or rudely displays any pistol or other deadly weapon in a manner calculated to disturb the peace, etc.
This statute was passed prior to 1866 and is found back in the old Pascal’s Digest (Gammel’s Laws of Texas, Volume 5), as is shown by the decision in Ex parte Slawson, 139 Texas Cr. R. 607, 141 S.W. (2) 609, in which case the disturbance statute (Art. 474, supra) was claimed to be vague, indefinite and uncertain and did not set forth in intelligible language that which is necessary to constitute the conduct that was complained of.
This matter was held in the Slawson case, supra, to be a statute unmistakably plain in its meaning and was sufficiently certain to inform the relator of the offense with which he stood charged.
Our Texas Supreme Court, in Sisk v. State, 35 Texas 495, 496, relative to this act setting forth the disturbance of the peace, said:
“ ‘A somewhat novel question is presented by this record. The appellant, with one other, was indicted at the February term, 1871, charged with ‘rudely displaying pistols,’ and was tried, found guilty and fined. The indictment was founded on the Act of October 20, 1866, which was intended to repeal and super-cede art. 2012, Pas. Dig. It is insisted that the law is void for uncertainty and for want of completeness.
“ ‘Upon an examination of the law we do not so consider it. The law is unmistakably plain in its meaning, and in nowise subject to the hypercriticism passed upon it by the appellant’s counsel. The judgment of the district court is affirmed.’ ”
We.also find the words “loud” and “vociferous” defined in Thomason v. State, 98 Texas Cr. R. 312, 265 S.W. 579, and both *412are held to be susceptible of an interpretation by an ordinary person. See also West v. State, 131 Texas Cr. R. 191, 97 S.W. (2) 477.
We may use these holdings relative to the disturbance statute as analogous to the use of unusual and excessive noises as set forth in the statute under attack herein.
We think that under the general doctrine of upholding an enactment of the legislature if it is capable of being clearly construed, as well as deference to the opinion of our brethren of the Texas Supreme Court, as well as the Texas Court of Civil Appeals in upholding the validity of this act, surely such should have some weight and persuasiveness with us, though not decisive alone of the matter; nevertheless, the comity between our courts should demand that we give them consideration at least.
Under the circumstances, we are of the opinion that our original judgment upholding this act is correct, and the motion for rehearing is therefore overruled.