Conviction for aggravated assault; punishment, a fine of two hundred dollars.
There are three counts in the information, each charging an aggravated assault. Counts one and three allege, in substance, that appellant was the driver of a truck on a public highway in Lubbock County of this state, to-wit: State Highway No. 137, and did commit an aggravated assault upon one Sullivan by then and there wilfully and with gross negligence colliding with and causing injury to said Sullivan. Count two charged appellant with driving such truck on such highway, and that he did negligently, — while operating said vehicle on his left side of said highway, * * * collide with said Sullivan, etc.
In his charge to the jury the trial court confined their right to convict to a finding that the collision was upon gross negligence, thus, in effect, eliminating count two from the consideration of the jury, though there was a reference in the opening *Page 482 paragraph of the charge to the fact that the accused was charged in three counts, etc. The charge must be taken and considered as a whole, and we see no reason for concluding that the jury found appellant guilty under the second count, or that any injury was possible by reason of such reference in the charge.
Able counsel for appellant present in their brief, first, the proposition that the testimony does not support the averment that the alleged collision took place on a public highway. The facts show that it did take place on Highway 137, but at a point where said highway was under construction, — gates having been built across said highway. The facts further show that the gates mentioned had been opened by the construction company, and the highway at the point of collision was being then used by the public. We see no reason for putting a different construction upon the term "highway" as used in this statute, — from that placed on the same term in cases construing the law forbidding driving on public highways by persons intoxicated. In Nichols v. State, 120 Tex. Crim. 219, we said that the designation "Highway" was used to differentiate such roads from private roads. See also Woods v. State, 119 Tex.Crim. Rep.. We observe that both appellant and Sullivan, as well as other travelers were making use of said highway as public at the time.
Appellant's next proposition is that the testimony showed without dispute that the collision was the result of an unavoidable accident, and hence fails to make out a case against him. The trial court told the jury in his charge that if they found from the evidence that such collision was the result of an unavoidable accident, or if they had a reasonable doubt as to whether it was, they should acquit. Sullivan swore that appellant was driving some forty-five or fifty miles per hour at the time of the collision, and that he, witness, who was meeting appellant, pulled over so far on his side of the road that only his left wheels were on the caliche, his right wheels being off the caliche, and as near to the rocks piled on that side as he could get; that appellant was driving on Sullivan's side of the road, and pulled further over toward him, striking the left front corner of Sullivan's wagon with such force as to break the tongue of the wagon, break the mules loose, and knock the wagon thirty feet back up the road, throwing Sullivan a distance on some rocks and breaking his knee. An employee of the construction company testified for the state that at the point of collision the caliche topping on the road was twenty feet wide, and that it was about seven feet from the edge of the caliche *Page 483 to where the rock piles began. Other evidence pro and con on the point under discussion, was before the jury, whose finding was not without testimony to support it. See Ratliff v. State, 95 Tex.Crim. Rep..
Appellant's third proposition relates to the insufficiency of the second count of the information, which we regard as not having been submitted to the jury, and which appellant had moved to quash.
The next contention is that the various counts of said information are all defective in not alleging that the injury inflicted was "less than death." The proposition is not sound. Examination of article 1149, P. C., which defines this offense, reveals that it expressly provides that for an injury less than death, the operator of the colliding car may be held guilty of aggravated assualt, but if death results the offense shall be homicide of some grade. Averment of the collision with gross negligence, and that by reason of same the accused committed an aggravated assault, appraised him of the charge against him and enabled him to prepare for trial, and, if necessary, to plead against a subsequent prosecution his jeopardy or former acquital, or conviction.
Complaint appears of the alleged failure of count three to state the date or place of the commission of the offense. All these matters are stated in count one, which in similar cases has been held to be sufficient. See Morgan v. State,31 Tex. Crim. 1; Dancey v. State, 35 Tex.Crim. Rep.; Manovitch v. State, 50 Tex.Crim. Rep.; Smoot v. State, 116 Tex.Crim. Rep..
Appellant has some complaints of the charge, but looking to same as a whole, we fail to see any error which could possibly be of any injury or harm to appellant's case. The charge submitted the defensive theory of unavoidable accident, and applied the law to the facts from the standpoint of the defense by telling the jury that unless they found that appellant was operating his truck with gross negligence at the time of the collision, they should acquit. There was practically no dispute over any other fact issue save those of accident and gross negligence.
Being unable to agree with any of appellant's contentions, and finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.