dissenting.
My views are those expressed in the majority opinion herein on original submission and in Garrett v. State, 161 Texas Cr. Rep. 556, 279 S.W. 2d 366, an opinion we unanimously approved on May 25, 1955.
The construction which we gave to the legislative intent in enacting Art. 6701d V.A.C.S. was and has been to the present time that it did not repeal Art. 801A P.C.
The legislature has met and adjourned since we handed down the opinion in the Garrett case, and informations, including the *236one before us, have been drawn under Art. 801A V.A.P.C. upon faith in our holding in the Garrett case.
I adhere to the statement in the majority opinion on original submission which is in fact a quotation from Casares v. State, 144 Texas Cr. Rep. 465, 164 S.W. 2d 700, and is the controlling point of law: “It is never permissible to drive on the left hand side of the road when there is an obstruction on the left hand side within 50 yards.”
If we were in error in construing Art. 6701d V.A.C.S. as not repealing Art. 801A V.A.P.C. the legislature could have and may yet set us straight.
If there by any provision of Art. 801A V.A.P.C. or Art. 6701d V.A.C.S. which makes it an offense to drive on the left hand side of the highway, appellant was engaged in violating it when by reason of his negligence three lives were lost.
The majority do not say appellant was not violating the law, but hold in effect that the information should have alleged that the right hand side of the highway was not closed for construction or repairs, or should have alleged that appellant was engaged in the unlawful act now defined in Sec. 53 of Art. 6701d V.A.C.S. which supersedes Art. 8015 V.A.C.P. (not 801A).
I do not envy the prosecutor who attempts to draw an information charging that the accused was engaged in the violation of Sec. 53 of said article, which reads:
“Drivers of vehicles proceeding in opposite direction shall pass each other to the right, and upon roadways having width for not more than one line of traffic in each direction each driver shall give to the other at least one-half (i/%) of the main-travelled portion of the roadway as nearly as possible.”
I express no opinion upon the question of whether Sec. 53 of Art. 6701d V.A.C.S. sufficiently defines and makes it an offense for a driver to fail to yield at least one-half (%) of the main traveled portion of the roadway as nearly as possible” to a vehicle traveling in the opposite direction. But just how a driver of an automobile could be said to be engaged in the performance of the omission which is made an unlawful act, and thus make his negligent killing of another negligent homicide of the second degree, I cannot see.
*237It appears to me that the majority, in their reasoning, confuse the negligence which causes death and which may be an act committed or a failure to act, and which may be lawful or unlawful, with the act in the performance of which the negligence occurs. It is the latter which determines the degree of negligent homicide, and which is the allegation here in question.