Wilson v. State

LATTIMORE, Judge

(dissenting).

I regret the necessity for this dissent. The indictment herein charged appellant with driving a motor vehicle on North Fannin street of the city of Tyler while he was “to some extent” under the influence of intoxicating liquor. In fact, he was admittedly drunk, and the only defense interposed on the trial was that there was no such street in Tyler as North Fannin street. No issue was made as to the extent or degree of appellant’s drunkenness. No motion was made to quash the indictment. On appeal appellant raises in his brief the question that the indictment herein charges no violation of the law because it contains the averment that he was “to some extent” under the influence of intoxicating liquor, but no authorities are cited and no argument apparently made in support of the position. My associates are of opinion that the allegation “to some extent” makes the indictment bad, and that for this reason the judgment must be reversed and the prosecution ordered dismissed. It seems difficult to me to understand how such conclusion can be reached.

Article 802, P. 0., under which this conviction was had, has been on o.ur statute books for ten years, and every phase of it has apparently been -considered and construed by this court as now constituted. The exact language of the statute forbids that any person shall drive a motor vehicle on a public highway while intoxicated or “in any degree under the influence of intoxicating liquor.”

This court is thoroughly committed to the proposition that the indictment is sufficient for this offense if it charges that the accused was “under the influence of intoxicating liquor” at the time complained of Williams v. State, 100 Tex. Cr. R. 51, 271 S. W. 628; Jones v. State, 101 Tex. Cr. R. 71, 274 S. W. 566; Boyd v. State, 106 Tex. Cr. R. 494, 292 S. W. 1112; Stewart v. State, 108 Tex. Cr. R. 202, 299 S. W. 646; Nunn v. State, 114 Tex. Cr. R. 487, 26 S.W.(2d) 648; Fuller v. State, 116 Tex. Cr. R. 312, 32 S.W.(2d) 358; Farmer v. State, 119 Tex. Cr. R. 213, 43 S.W.(2d) 588; Herring v. State, 117 Tex. Cr. R. 211, 35 S.W.(2d) 737, 739. In the last case cited the indictment charged that the accused was “under the influence of intoxicating liquor” when he drove the car in question. In the original opinion we said the motion to quash the indictment was properly overruled. In the opinion on rehearing, it is said: “The indictment is attacked as being based upon an invalid statute * * * based upon the verbiage of article 802, P. C. 1925, wherein the following words appear; ‘Or in any degree under the influence of intoxicating liquor.’ The validity of the statute has been upheld, though the words * * * ‘in any degree,’ have been regarded as surplusage.” We expressly held that said words furnish no ground for a reversal of the case. In the Williams Case, supra, we wrote that the theory that in charging that one was intoxicated —and under the influence of intoxicating liquor — charged two. offenses, was untenable inasmuch as to charge that one was intoxicated, was but a different way of alleging that he was under the influence of intoxicating liquor.

Surplusage — under all the authorities in reference to indictments — is something written therein which may be discarded, leaving the offense fully charged. Warrington v. State, 1 Tex. App. 168; Mayo v. State, 7 Tex. App. 342; Rivers v. State, 10 Tex. App. 177; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110; Goodwin v. State, 70 Tex. Cr. R. 600, 158 S. W. 274, 275; Jennings v. State, 88 Tex. Cr. R. 639, 220 S. W. 525; Seebold v. State, 89 Tex. Cr. R. 563, 232 S. W. 328; Shroeder v. State, 92 Tex. Cr. R. 7, 241 S. W. 169; Harvey v. State, 92 Tex. Cr. R. 645, 244 S. W. 1004; Martin v. State, 95 Tex. Cr.. R. 401, 254 S. W. 971.

To undertake to demonstrate by argument or illustration that the words “to some extent,” which are used in the indictment in the instant case, are the exact equivalent of the words “in any degree,” or “to some degree,” which are used in article 802, P. C., would be like arguing that two and two make four, or that, a straight line is the shortest distance between two points. If — as Judge Morrow says in the Herring Case, supra, and as we have substantially held in numerous cases — the words “in any degree” are sur-plusage, they may be stricken out of the indictment, or omitted in its consideration, and, if that which is left sufficiently charges the offense, the indictment would unquestionably still be good.

Applying what we have said in so many cases to the instant case, we should merely hold- the words “to some extent” to be sur-plusage, and omitting same we would have here an indictment fully charging that the accused drove his car on a public street in the city of Tyler while under the influence of intoxicating liquor, which is in exact accord with what we upheld in the Williams Case, supra, and which we have upheld in other cases.

In apparently the first considered case under article 802, supra, Nelson v. State, 97 Tex. Cr. R. 210, 261 S. W. 1046, the original opinion by Morrow, P. J., and by the writer on rehearing, the offense is stated in the original opinion as unlawfully operating a car on a public street while under the influence of intoxicating liquor. On rehearing, article 802, supra, was quoted in full and the statement plainly made that same does not attempt to fix any limit as to the amount of intoxicating liquor that will be permitted in the driver of a vehicle on a public street, but on the contrary it prohibits his being under the influence of intoxicating liquor “to any *402extent.” In Scoggins v. State, 98 Tex. Cr. R. 546, 547, 266 S. W. 513, opinion by Judge Morrow, the holding in Nelson’s Case, supra, is expressly approved, and we there hold that when the proof showed the accused to be drunk, there could be no complaint of failure on the part of the trial court to attempt to define the term “intoxicated.” The Nelson Case was again approved in Stewart v. State, 108 Tex. Cr. R. 200, 299 S. W. 646. In the concurring opinion in Fuller v. State, 116 Tex. Cr. R. 312, 32 S.W.(2d) 358, it is expressly admitted, as in the opinion in the Herring Case, supra, that the expression “in any degree” is surplusage.

I have never been able to agree that the language used by the Legislature in defining this offense is such as that when followed in an indictment the indictment should be held had and the case reversed for that reason. I have agreed to the holding that certain words used by the Legislature might be held surplusage, and that the word “intoxicated,” .and the expression “under the influence of intoxicating liquor,” meant the same thing, but I cannot now agree that the insertion into this indictment of words whose equivalent 'has often been held to be mere surplusage, viz., “to some extent,” would warrant this court in reversing the case of a man who was shown to be, as a witness said, limber dr.unk.

As far as the writer knows it has never been held in any other state of this Union that such expressions as “to any degree” or “to any extent,” vitiate the indictment, and it occurs to me that this court is now embarking upon an entire departure. As illuminating we call attention to the language of similar statutes in other states. The following states have statutes punishing him who drives a car “while under the influence of intoxicating liquor”: Arizona, California, Georgia, Rhode Island, Maryland, Massachusetts, Montana, West Virginia, Utah, Pennsylvania, Connecticut, Washington, Oregon, Oklahoma, Delaware, Tennessee, Idaho, Michigan, Florida, Vermont, New Hampshire, South Dakota, Virginia, North Carolina, Iowa, Maine, New Jersey, and possibly others. Some states punish him who so drives “while intoxicated,” or “in an intoxicated condition.” ’These are Kansas, Louisiana, Nebraska, North Dakota, ' Wisconsin, Alabama, Kentucky, New York, Indiana, Ohio, Arkansas, Minnesota, and Illinois. The Missouri statute forbids such action “while in an intoxicated condition, or under the influence of drugs,” the principle involved in the last clause of the statute being similar to the one here under consideration. Colorado forbids such driving “while in any degree under the influence of any intoxicants.” Mississippi prohibits such driving “while in a state of intoxication, or in any other respect incapable of properly and safely operating,” etc. .Many of the states first named, in varying terms, make it penal to operate such car “while intoxicated, or under the influence of intoxicating liquor.”

The expressions from the courts of last resort in other states in some instances are interesting. State v. Dudley, 159 La. 872, 106 So. 364, 365, holds the words “under the influence of [intoxicating] liquor,” to be exactly synonymous with the expression “in an intoxicated condition.” In State ex rel. Sellers v. Parker, 87 Fla. 181, 100 So. 260, 263, the terms “under the influence of intoxicating liquor” were held not lacking in definiteness or intelligibility. In Commonwealth v. Lyseth, 250 Mass. 555, 146 N. E. 18, it seems held sufficient to uphold a conviction, to prove that the driver of the car was under the influence of liquor rather than intoxicated, although the statute of Massachusetts penalizes him in specific terms who is “intoxicated.” In People v. Ekstromer, 71 Cal. App. 239, 235 P. 69, the Court of Appeals of California held that the law prohibiting the driving of a motor vehicle by a person under the influence of intoxicants was designed to protect the public from the menace of automobiles operated on public highways with inadequate or inefficient control in a world of traffic difficult of management under normal conditions, and that the law should be liberally construed to effect its purpose. In State v. Giles, 200 Iowa, 1232, 206 N. W. 133, 42 A. L. R. 1496, the Iowa Supreme Court affirmed a judgmenl inflicting punishment at a year in the penitentiary of a car driver whose condition was such as that he could guide his car through traffic, but was shown to be under the influence of intoxicants, saying that the circumstances of the particular case were not aggravated, but that the very nature of the offense was such as that aggravation inheres in it; that the peril threatened by such an offense was so great and imminent that only severe punishment could be deemed adequate to restrain it. In People v. Weaver, 188 App. Div. 395, 177 N. Y. S. 71, 37 N. Y. Cr. R. 566, the court said that for the purposes of a statute forbidding the operation of a car by one intoxicated, the accused was in such condition when he had imbibed enough liquor to render him incapable of giving that attention and care to the operation of his car that a man of reasonable prudence and intelligence would give, and the opinion is expressed that under said statute the jury should have been instructed that “intoxication” within the meaning of the statute, meant such condition (resulting from the use of intoxicants) as impairs to some extent, however slight it may be, the ability of such person to operate such car. So in State v. Rodgers, 91 N. J. Law, 212, 102 A. 433, 434, the court says that “under the influence of intoxicating liquor,” covers. all conditions and degrees of intoxication, as well as any abnormal, mental, or physical condition which results from indulging in *403any degree in intoxicating liquor, and Which tends to deprive such operator of clearness of intellect and self control which he otherwise would possess.

Believing that at most the .use in the indictment of the words “to some extent” amounts to but surplusage, and that with this stricken out the indictment fully charges the accused with operating his automobile on a public street while under the influence of intoxicating liquor, which this court has expressly held to be a good indictment, I cannot bring myself to agree to the holding of the majority, and hence this dissent.