(dissenting).
This is a conviction for negligent homicide of the first degree. The jury so expressly found. • • i
Negligent homicide of the first degree arises only while the accused is in the commission of a lawful act.
The information upon which the conviction and finding of the jury were predicated charged the commission by appellant of an unlawful act arising under negligent homicide: of the second degree. The unlawful act alleged was that appellant “did fail to yield the right of way to an automobile on said other highway pursuant to a ‘yield-right-of-way’ sign at or near said intersection, which said sign was facing the said highway upon which the said defendant was traveling * * * .”
The effect of that allegation was to charge appellant, with having disobeyed the instructions of a traffic-control device, made unlawful by Sec. 32 of Art. 6701d, Vernon’s R. C. S.
Moreover, and in addition to the foregoing, the information —in the same count as that of the above — alleged acts of negligence in the commission of a lawful act.
The information, therefore, charged in the same count two separate and distinct offenses — that is, negligent homicide of the first degree (Art. 1231, Vernon’s P. C.) and negligent homicide of the second degree (Art. 1239, Vernon’s P. C.).
One cannot be guilty of both offenses in the same act. Bowles, 140 Tex. Cr. R. 511, 146 S. W. 2d 183.
The information was invalid and did not authorize the conviction.
I dissent.