Vogt v. State

ON MOTION FOR REHEARING.

GRAVES, Presiding Judge.

In the motion for rehearing filed herein appellant complains of the facts presented before the jury and claims same to be insufficient in many respects. We think the facts presented are of sufficient cogency to show that appellant was driving in a negligent manner the car which struck the injured party on the night in question. This matter has been properly decided by the jury and we have no desire to overrule their findings thereon.

Appellant also lays much stress on the fact that the complaint and information herein charges appellant with the offense of driving an automobile and “wilfully and with negligence” colliding with and causing injuries less than death to the person of the alleged injured party.

The statute uses the expression “wilfully or with negligence,” but it has long been the holding of this court that the better pleading would be to use the conjunctive “and” rather than the disjunctive “or,” as found in Article 1149 of the Penal Code, and that the finding of either wilfully or with negligence would be sufficient to uphold a verdict thereunder. We have so held in many cases, and in the recent case of Mackey v. State, 158 Tex. Cr. Rep. 276„ 255 S.W. (2d) 198, it is said:

“ ‘We have heretofore held that an information and complaint in this exact language was correct in the case of Young v. State, 120 Tex. Cr. R. 39, 47 S.W. 2d 320. See also Huff v. State, 123 Tex. Cr. R. 238, 58 S.W. 2d 113, and cases there cited.’

“It will be noted from the above quotation that for many years it has been our holding that both negligence and wilfulness may be charged in the same count of the information and that proof of either one of which would be sufficient to uphold a conviction.”

We see no merit in the appellant’s motion for rehearing, and the same is therefore overruled.