(dissenting).
This conviction grows out of the death of deceased which the state alleged resulted in the violation of Art. 802c, Vernon’s P.C., with punishment assessed at two years in the penitentiary.
It is not a conviction for murder without malice, as my brethren state. Art. 802c, P.C., could not be a part of the law of murder, because in order to constitute murder with or without malice there must be a voluntary killing, which means an intentional killing. Under Art. 802c, P.C., the act on the part *116of the accused that causes death must be done by accident or mistake. If intentionally done, there would be no violation of that statute. See Greiner v. State, 157 Tex. Cr. R. 479, 249 S.W. 2d 601.
In my opinion, the evidence in this case is insufficient to support this conviction in each and all of the following particulars: (a) The facts do not show or warrant the conclusion that appellant was under the influence of intoxicating liquor at the time; (b) if appellant was under the influence of intoxicating liquor at the time, then there is no evidence that such intoxication caused, contributed to cause, or in any manner brought about the death of the deceased; (c) there is an absence of any testimony showing that appellant drove his automobile into and collided with the automobile in which deceased was riding, as alleged and charged in the indictment; (d) the undisputed facts and physical evidence show that deceased, while operating her automobile at a high and dangerous rate of speed, drove it into and collided with the automobile occupied by appellant, which act on her part caused her death.
My brethren discuss only the sufficiency of the evidence from the standpoint of intoxication, and dismiss the remainder by saying that inasmuch as appellant’s counsel has not questioned the sufficiency of the evidence in these particulars they will not be discussed further than to say that they find the evidence sufficient in such particulars.
The question of whether counsel for appellant did or did not challenge before this court the sufficiency of the evidence to support the conviction in other particulars mentioned does not relieve this court of its duty to examine the facts and to determine whether the facts are sufficient to support the conviction. Due process of law so demands, for no man should be condemned to penal servitude when the facts fail to show him guilty.
Now let us see how the state went about proving in this case that the appellant was intoxicated. It shows by appellant’s confession that about an hour prior to the collision he drank some beer; as to how much or how little, there is no suggestion. Something like two and a half hours thereafter, there was taken from appellant a sample of his blood. This sample of blood was delivered on the following day to a chemist for the Department of Public Safety who made an analysis thereof to' ascertain its alcoholic content. The analysis made at that time re*117vealed there was an alcoholic content of 1.3 milligrams of alcohol per cubic centimeter of blood.
It appears that some organizations have attempted to recognize certain standards for determining intoxication by blood analysis. Here, the chemist admitted knowledge of these standards and testified as follows:
“Well, the interpretation of the blood-alcohol concentration, based on the testing, and the conclusion that the 1.5 milligrams of alcohol per cubic centimeter of blood is sufficient to cause all persons to be intoxicated is recommended for interpretation by the American Medical Association and the National Safety Council.”
Of necessity, the state recognized the fact that appellant’s blood content did not meet that standard and, by a process of deductions, assumptions, and presumptions, set about to show that appellant’s blood content was above the standard of 1.5 milligrams.
The chemist testified to the effect that it takes about one hour after a person has taken alcohol into his system for the alcoholic content of the blood to reach its peak. After that, the content decreases at the rate of “two-tenths of a milligram of alcohol for each hour the alcohol in the body is gotten rid of, partly by excretion through the kidneys, some through the perspiration and breath, and most of it is oxidized or burned inside the body* * * *.”
So, by this process of deduction, the witness testified that at the time of the collision the alcoholic content of appellant’s blood was 1.8 milligrams of alcohol per cubic centimeter of blood. Upon that hypothesis, the chemist expressed the opinion that at the time of the accident appellant was intoxicated — and this, without having seen him or having observed his acts and conduct or knowing anything whatsoever of his physical condition or make-up.
This is the testimony that my brethren hold sufficient to establish beyond a reasonable doubt that appellant was intoxicated at the time of the collision.
As against this testimony, I call attention to the fact that the witness Curtner, who was an eye-witness to the collision and the first one to reach the appellant thereafter, refused to testify *118that appellant or any one else was intoxicated. Highway Patrolman McDaniel, arriving at the scene of the collision before appellant was carried to the hospital, saw and observed him and his injuries. This officer, to whom appellant made the confession, also made no effort to testify that he (appellant) was intoxicated at that time. To the contrary, he testified that at that time appellant’s “talk was coherent.” Highway Patrolman Wilson, who saw appellant at the scene of the collision and was with him at the hospital and obtained his permission to be given a blood test, made no effort to testify that appellant was intoxicated at either time or place. In fact, this witness was not interrogated about the matter.
So, those who saw appellant soon after the collision and at the hospital and were in position to observe his acts and conduct and to know whether he was intoxicated at the time failed and refused to testify that he was intoxicated.
The state’s case, then, as to proof of intoxication depends solely and alone upon the inference, assumption, presumption, and deduction from claimed scientific tests by which it was shown at the time of the collision that the alcoholic content of appellant’s blood was 1.8 milligrams per cubic centimeter, and the further presumption, based thereon, was indulged that the appellant was intoxicated because of that alcoholic content in his blood.
To just what kind or character of intoxication did the chemist refer when he expressed the opinion that appellant was intoxicated? Was it intoxication that is known to or recognized by chemists or scientists, or was it intoxication which the law recognizes and applies to the trial of criminal cases involving the question of intoxication? Here, the chemist did not testify as to either question.
As applicable here, intoxication was correctly defined by the trial court in his charge to the jury, as follows:
“The term ‘intoxicated or under the influence of intoxicating liquor,’ within the meaning of the law, and as used in this charge, means the condition of a person who is under the influence of intoxicating liquor to such an extent that he does not have the normal use of his physical and mental faculties.”
There is not a line of testimony in this case that would authorize the conclusion that the appellant, at the time of the *119collision, was “under the influence of intoxicating liquor to such an extent” that he did not “have the normal use of his physical and mental faculties.” The chemist did not so testify. None of the witnesses who saw, observed, and talked with the appellant after the collision so testified.
My brethren hold the facts sufficient, upon the broad proposition that any one who has an alcoholic content of 1.8 milligrams per cubic centimeter of blood is intoxicated and does not have the normal use of his physical and mental faculties — and this, regardless of how sober that person is, or may appear, or how thoroughly and completely he may be in possession of all of his faculties, physical and mental.
The legislature has not seen fit to pass a statute that would say such is true or that would authorize such conclusion. Nor have we any statute saying that proof of any fact constitutes prima facie evidence of intoxication. Yet that is exactly what my brethren are here saying.
Circumstantial evidence cannot be founded upon an inference based upon an inference.
I pass now to a discussion of the other questions which are raised, assuming that the state has proven the intoxication of appellant, as alleged.
The indictment in this case charged as follows:
“* * * that Manuel Ramirez * * * did then and there unlawfully, while intoxicated and while under the influence of intoxicating liquor, drive and operate a motor vehicle, an automobile, upon a public highway of this State, to wit, U. S. Highway No. 183, and did then and there, in the execution of said unlawful act through mistake and accident kill Mrs. Jewel Reynolds Ruble by then and there driving said automobile into and caus-' ing it to collide with the automobile occupied by the said Mrs. Jewel Reynolds Ruble * * *.”.
The significant part of the indictment in relation to the question now under consideration is the direct allegation that appellant drove his automobile into and caused it to collide with the automobile occupied by the deceased. Such allegation was a descriptive averment of an essential element of the offense charged, and the state assumed the burden of establishing *120that allegation by the proof. Without proof thereof, the state’s case necessarily failed.
Now what are the facts to meet that allegation?
The collision that resulted in the death of the deceased occurred in Williamson County at the intersection of the Burnet Highway, a Federal highway, and the McNeil Road, a farm-to-market road. Deceased was driving a Dodge coupe in a northerly direction on the Burnet Highway at a rate of speed of forty to forty-five miles per hour. The east side of the highway was the right side of the highway to the deceased. She had just shortly prior thereto passed or driven around the heavy truck which was being driven by the witness Curtner, who was following a short distance behind the Dodge coupe.
A Chevrolet automobile, of which appellant was the driver, approached the intersection traveling at a rate of speed of twenty-five to thirty miles per hour in a westerly direction on the McNeil Road. There was a stop sign on the McNeil Road at the intersection. The Chevrolet automobile was driven onto the Burnet Highway without stopping or obeying such stop sign and, as it neared the center of the highway, “the Chevrolet went to make a left turn, evidently going to head back to Austin, and as the lady in the Dodge tried to by-pass them, she hit them right in broadside.”
The foregoing facts are taken from and established by the testimony of the witness Curtner and are undisputed in this record.
As a result of the collision, the Chevrolet automobile was knocked approximately seventy-five feet across to the west side of the highway and across a fence into a pasture. The Dodge coupe remained upright on the east shoulder of the highway headed in a northerly direction.
There were five other persons in the Chevrolet besides the appellant, who was, himself, injured in the collision. The deceased was the sole occupant of the Dodge coupe.
A highway patrolman who arrived at the scene of the collision shortly thereafter testified that skid marks on the east side of the Burnet Highway (the side upon which the Dodge automobile was traveling) were approximately thirty-four feet and seven inches from where they started to the point of impact *121and that “the skid marks did cross the center line at — right at that point.” A picture was taken at the scene which shows that the skid marks extended across the center line of the highway and into the west lane thereof, which was the line in which the Chevrolet would be traveling after making a left turn on the highway “to head back to Austin.”
The facts stated are undisputed and are those upon which this conviction rests.
Appellant did not testify, nor were any of the other occupants of the Chevrolet called upon to testify.
Viewing the facts as an over-all picture, it appears that the driver of the Chevrolet ran the stop sign and drove onto the highway in front of the oncoming Dodge and turned or attempted to turn to the left after entering the side of the highway that would be the right-hand side traveling toward Austin. While the Chevrolet was in this position the Dodge coupe struck it broadside and knocked it about seventy-five feet — and this, after the Dodge had skidded, with skid marks from all wheels showing, for thirty-four feet on the pavement. The witness who estimated the rate of speed at which the Dodge coupe was traveling at thirty-five to forty miles per hour was certainly not guilty of overestimating the rate of speed at which deceased was traveling.
The state calls attention to the fact that there was evidence showing that from a point of forty-nine and a half feet east of the stop sign on the McNeil Road the view was clear and unobstructed for a distance of seven hundred feet south, the direction from which the Dodge was approaching the intersection.
The state seeks to make use of this testimony to show that for a distance of forty-nine feet before the driver of the Chevrolet reached the intersection he had a clear view of the approaching Dodge coupe.
Of course if the driver of the Chevrolet could see the approaching Dodge for that distance, so also could the driver of the Dodge see the approaching Chevrolet. I am unable to recognize the significance of this testimony, for this is not a case of negligent homicide nor is negligence or the running of the stop sign an element of the offense for which appellant stands here convicted.
*122These facts lead to but one conclusion, and that is that deceased, driving the Dodge coupe at a high and dangerous rate of speed, pulled out of the lane in which she was traveling and into and across the center line of the highway and into the left lane and there struck the Chevrolet automobile “broadside” with such force as to knock it seventy-five feet after applying her brakes and skidding some thirty-four feet, herself.
One cannot help but conclude that had deceased remained in her proper right-hand lane and not attempted to “by-pass” (pass around) the Chevrolet, she would not have driven her car into and caused it to collide with the Chevrolet. Instead of appellant driving his automobile into that of the deceased, the deceased drove her automobile into that of the appellant.
These facts demonstrate that the state has wholly failed to-establish, by the evidence, the allegation of the indictment that appellant drove his automobile into that occupied by the deceased.
Notwithstanding these undisputed facts, my brethren hold that appellant did drive his automobile into that occupied by the deceased, and they do not cite any fact or facts from this record that would justify such conclusion. They dispose of the matter with the broad statement that the facts warrant their conclusion.
I pass now to a discussion of the remaining proposition: which is that no casual connection is shown between appellant’s drunken driving and the collision. For this discussion only, this question will be discussed in view of the assumption that the state proved appellant’s intoxication and that he drove his automobile into that of the deceased.
My brethren so find the facts, so let us see if the state has proven appellant guilty under these facts.
Art. 802c, P.C., under which this conviction was had, as applied to the allegations here, is composed of two elements. These are (a) the intoxicated driving of the automobile on a public highway, and (b) the doing of another act by accident or mistake which act so done by accident or mistake would have constituted murder if intentionally done.
Where is the evidence which shows that appellant did, by accident or mistake, do some act that brought about the colli*123sion and resultant death of the deceased? From the standpoint of the state, every act that he did was intended. If, after he drove the stop sign and into the highway intersection and made the return into the proper lane for return to Austin, in so doing he drove his automobile into and caused it to collide with that of the deceased, such act was intended. I am at a loss to see how it can be said that appellant accidentally or mistakenly drove his automobile into that of the deceased. Yet, in affirming this conviction, my brethren so hold.
If appellant ran the stop sign and drove his automobile across the intersection and into the automobile of the deceased, as the state contends he did, then he would be guilty of murder because every act on his part was intended, either directly or impliedly. There is an entire absence of any proof that any act on the part of the appellant which brought about the collision was the result of an accident or mistake on his part.
The facts do not support the conviction.
Finally, all the authorities construing Art. 802c, P.C., and its antecedent counterpart applying Art. 42, P.C., hold that there must be a casual connection between the intoxicated driving and the act which bring about the death of the deceased.
The trial court correctly recognized the rule when he instructed the jury that they would not be authorized to convict the appellant unless, among other things, they found and believed from the evidence beyond a reasonable doubt “That the fact that he (appellant) was then and there intoxicated or under the influence of intoxicating liquor was the cause, or contributed as a cause, to said collision, and the death of Mrs. Jewel Reynolds Ruble * * *.”
What act does this record show that appellant did because of his intoxication that he would not have done had he not been intoxicated? The answer must, of necessity, be “None.” The running of the stop sign was no more the act of an intoxicated person than that of a sober one. Surely it cannot be said that only intoxicated persons run stop signs or that the running thereof indicates, of and within itself, intoxication. The same can be said of the act in driving into the intersection and making the turn into the proper traffic lane in traveling toward Austin. Each and every act that the appellant is accused of doing could have been the act of a sober person just as much as that of an intoxicated person.
*124Therefore, the facts wholly fail to establish this element of the state’s case.
Of course, appellant did wrong when he ran the stop sign and drove onto the highway. Indeed, he may have been guilty of other acts of negligence under the facts. But appellant is not here upon trial for any offense or any act of negligence growing out of those acts.
The running of the stop sign, or negligence on the part of the appellant, is no part or element of the offense here charged. This is not a prosecution for negligent homicide.
In order for appellant to be guilty as here charged, he would have had to be intoxicated, which intoxication caused him to drive his automobile into and collide accidentally with the automobile driven by the deceased. The facts warrant no such conclusion.
Believing that the state has failed to establish appellant’s guilt as charged, I respectfully enter my dissent to the affirmance of his conviction.