Thurmon v. State

KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the State penitentiary for a term of two years.

It is charged in the indictment that on or about the 21st day of December, 1940, “and anterior to the presentment of this Indictment, in the County and State aforesaid, W. P. Thurmon, Jr., did then and there unlawfully while intoxicated and while under the influence of intoxicating liquor, drive and operate a motor vehicle, to-wit, an automobile, upon a highway, co-wit, state highway No. 1, and did then and there in the execution of said unlawful and felonious act, through mistake and accident, kill Elmo Hays by then and there driving said automobile into and causing it to collide with an automobile in which the said Elmo Hays was riding” etc.

The testimony adduced by the State, briefly stated, shows that the appellant, while drunk, drove an automobile along and upon U. S. Highway No. 80; that sometime prior to the accident the State Highway Department had designated this highway as Highway No. 80. However, some years prior thereto it was known as State Highway No. 1, but at the time of the alleged offense there was not any State Highway No. 1 in Midland County; it did not exist. The evidence further shows that in the course of the operation of his automobile in his drunken condition, appellant ran head-on into an automobile being driven by Mr. Hays, who was accompanied by his wife and son; that as a result of said collision Mr. Hays and his son sustained injuries from the effects of which they both died.

Appellant’s theory, which finds support in the testimony offered by him, was that he was not drunk at the time of the collision; that he was traveling in a westward direction and the Hays’ automobile and one which just preceded it a very short distance were coming east; that the lights of the car which was just ahead of the Hays’ car were very bright and blinded him to the extent that he could not determine whether it was on the right or left-hand side of the highway; that in order to avoid a collision he pulled his car too far to the right and as a result ran into the shoulder of the highway, and fearing that he would go into the ditch at the side of the' road he pulled his car to the left; that being on loose gravel, it required more force than on an ordinary concrete highway to get his car back on the concrete, and when he managed to get it back, it swerved too far to the left and before he could get back on his side of the road the collision occurred.

By Bill of Exception No. 3 appellant complains of the court’s action in declining to give his requested instruction to,the jury to return a verdict of not guilty apparently based on the ground of variance in this, that the State had charged in the indictment that appellant drove upon State Highway No. 1 at the time of the collision when in fact the proof showed it to be State Highway No. 80. Consequently there was a variance between the allegation and the proof. In our opinion, there is merit in the appellant’s contention. Even if it be conceded that some years prior to the date of the alleged offense this highway had been designated by the State Highway Commission as State Highway No. 1, it was conclusively shown that this highway had been re-designated and re-numbered sometime before the collision occurred and the designated number of said highway by the State Highway Commission was No. 80. Consequently, at the time of the collision this highway was not known as Highway No. 1, but as Highway No. 80. It was not necessary for the State to have specifically charged that the offense was committed on Highway' No. 80. It would have been sufficient to have charged that appellant drove a motor vehicle while drunk upon a public highway in Midland County; but, having particularly described the highway by a designated number, the allegation being descriptive of the offense, it had to be' proved as charged. In support of what we have said,-we refer to the following cases: Spencer v. State, 118 Tex. Cr. R. 336; Malone v. State, 135 Tex. Cr. R. 169; Newsom v. State, 151 S. W. (2d) 225; 41 Tex. Jur. p. 152, sec. 97.

Appellant'complains of the court’s failure to instruct the jury on the law of circumstantial evidence -and in declining to give his special requested charge on the subject. It is our opinion that under the evidence a charge on the law of circumstantial evidence was not required. Such an instruction is called for when .the case rests entirely upon circumstantances from which an inference of guilt arises. The witness Williams testified, among other things, as follows:

“I had occasion to be on the highway leading from Midland to Odessa on or about the 21st day of December * * * about 10:30 o’clock at night. I did not see any part of the collision or the cars colliding out there, and the first thing that attracted my attention was when I drove up there and saw that two cars had run together. I stopped and got out of my car and saw that some one was hurt and then I got back in my car and went to a telephone. The two cars that were in the collision were on the right-hand side of the highway when I got there. * * * I believe one of the cars was a Buick and the other a Ford. There was one man in the Buick, and in the other car there was a man and a lady lying half in the car and on the ground. * * * There was no telephone where I went and so I came back to the scene of the accident, picked up two men and a lady there and took them to the Woods Hospital in Odessa, Texas.”

Appellant, who testified in his own behalf, admitted that he was on the highway leading from Midland to Odessa about the time of the collision; that he was driving a 1940 model Buick Sedan ; that a car with bright lights, which was ahead of the Hays’ car, blinded him and he did not see the Hays’ car until he had passed the car with the bright lights; that he did not remember which side of the car he went through when the accident happened, but he apparently went out through the right-hand side from the way the wind-shield was broken. There was direct evidence that Mr. and Mrs. Hays and their son were in the Ford car with which appellant collided. There was also direct testimony that appellant was drunk on the night in question. In our opinion, the facts above stated takes this case out of the realm of circumstantial evidence.

Because of the variance between the allegation and proof pointed out, the judgment of the trial court is reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.