Conviction is for murder; punishment assessed at two years in the penitentiary.
There is only one count in the indictment, which, omitting the formal parts, charged the appellant as follows: "That he did then and there unlawfully and voluntarily and with malice aforethought kill Jerry Allen with an automobile, said murder being so committed by the said Langston Burton while he, the said Langston Burton, was then and there engaged in the perpetration of the crime of driving and operating a motor vehicle, to-wit, an automobile, while under the influence of intoxicating liquors, in, along and upon the public highway there *Page 364 situated leading from the town of Henderson to the town of Minden."
The evident intention of the indictment was to charge appellant, while intoxicated, with driving and operating an automobile on a public highway and while driving said automobile accidentally killed Jerry Allen by then and there striking and colliding with the said Jerry Allen.
The deceased was a child seven years of age and he and other companions were returning from school, traveling along the highway. At the time he was struck by the automobile, he was off the highway and in a ditch to the side of the highway. The state's testimony further showed that the automobile of the appellant, with him driving, was seen approaching at a rapid rate of speed going at a rate of from 30 to 35 miles an hour, and, when nearing the place where the deceased was, the car ran off the roadway down the embankment striking the deceased, and inflicting injuries as a result of which he later died. There was evidence that appellant drank some whisky a short time before the accident and was under the influence of intoxicating liquor at the time of the accident. Immediately after the accident, the appellant took the child to the hospital.
The defensive theory was that a flat tire on the automobile caused it to swerve and go into the ditch and evidence was offered to the effect that there was a flat tire after the accident on the right-hand front wheel and the casing on that wheel had blown out, and that a blow-out on the right front wheel caused the car to swerve to the right, the direction it went when it left the road. Appellant also offered evidence to show that, at the time of the accident, he was not under the influence of intoxicating liquor. The appellant did not testify as a witness in the case.
The learned trial judge in his charge to the jury defined the word "voluntarily" as used in his charge and also "malice aforethought." The trial judge also instructed the jury in paragraph 11 of his charge that, unless they believed from the facts and circumstances in the case that the appellant was prompted by and acted with malice aforethought at the time the offense was committed, if committed, that they would not assess the punishment at a longer period of time than five years confinement in the penitentiary.
In paragraph 12 of said charge, he further instructed the jury that if they believed beyond a reasonable doubt that the appellant did intentionally, wilfully, and voluntarily, with malice aforethought, kill Jerry Allen by then and there striking *Page 365 and colliding with the said Jerry Allen with an automobile, and that they should further find and believe from the evidence beyond a reasonable doubt that the said Langston Burton was then and there at the said time driving and operating a motor vehicle, to-wit, an automobile, while under the influence of intoxicating liquor in and along a public highway there situated leading from the town of Henderson to the town of Minden with the specific intent then and there to kill the said Jerry Allen, said killing was done with malice aforethought, as that kind of malice has hereinbefore been defined, and that said automobile, considering the manner of its use, was a deadly weapon, and the said offense, if any, does not come within the definition of negligent or excusable homicide as will hereinafter be defined, then they would find the defendant guilty of murder and assess his punishment at death or by confinement in the penitentiary for life or any term of years you see proper not less than two; if they do not so believe, then, if they have a reasonable doubt as to whether the defendant is guilty of murder, they would acquit him of that offense.
The court further charged in paragraph 13 that, if from the testimony in this case "you should have a reasonable doubt as to whether the defendant at the time and place as charged in the indictment, while driving an automobile down a public highway leading from Henderson to Minden was under the influence of intoxicating liquor at the time Jerry Allen was struck by said automobile, then you will acquit the defendant of murder and consider whether the defendant is guilty of negligent homicide either in the first or second degree." The court also charged upon negligent homicide, both in the first and second degree.
Appellant at the proper time directed a number of exceptions to the court's charge. Under the evidence in this case, the judgment can be sustained only by virtue of article 802 of the Penal Code, which makes it a felony for any person to drive or operate an automobile on any public road or highway in this state, while such person is intoxicated or in any degree under the influence of intoxicating liquor, and by virtue of article 1242, which provides in substance that when one, in the execution of or in attempting to execute an act made a felony by law, shall kill another, though without an apparent intention to kill, the offense does not come within the definition of negligent homicide. Also by virtue of article 42, P. C., which in substance provides that, if anyone executing a felony shall through acts alone do another act which is voluntarily done, he *Page 366 shall receive the punishment affixed for the felony actually committed.
If it should be conceded that the indictment in this case is sufficient and that the evidence introduced in this case against appellant was admissible thereunder, then does the charge of the court assume a charge on a theory not raised or embraced by the evidence, as contended for by the appellant? There is absolutely no evidence in this case which would directly or indirectly tend to show that the appellant drove the car against the deceased voluntarily or with malice aforethought. The mere fact that the appellant may have been intoxicated at the time of the accident cannot be taken alone as proof of the fact that he drove said car against the deceased voluntarily, much less with malice aforethought.
Article 658, C. C. P., provides: "In each felony case the Judge shall before the argument begins, deliver to the Jury, except in pleas of guilty where a jury has been waived, a written charge, distinctly setting forth the Law applicable to the case."
In the case of Stewart v. State, 15 Texas App., 598, in construing article 677 of the C. C. P., which then provided that, after the argument of any criminal case is concluded, the judge shall deliver to the jury a written charge in which he shall distinctly set forth the law applicable to the case, Judge Hurt used the following language: "Applicable to what case? Any and every case which might be presented by any state of facts admissible under the indictment? Most evidently not. But clearly 'applicable to the case' charged in the indictment and presented by the evidence. By this article the charge of the court is rigidly restricted; first, to the allegations in the indictment; and second, to the case made by the evidence — that evidence which is admissible under the allegations of the indictment."
We quote from Lynch v. State, 24 Texas App., 350: " 'However correct the principle of law may be in the abstract, it is error to give it in charge where there is a total want of evidence to support the phase of the case to which it is applied.' Conn v. State, 11 Texas App., 390. 'If the court assumes and charges on a theory not raised or indicated by the evidence, it is radical error and fatal to a conviction.' Ross v. State, 10 Texas App., 455; Taylor v. State, 13 Texas App., 184; Hardin v. State, 13 Texas App., 192; Stewart v. State, 15 Texas App., 598. 'A charge should be confined to the facts in evidence.' Boddy v. State, 14 Texas App., 528; Mayfield v. State, *Page 367 23 Tex. Crim. 645." See, also, Scoggin v. State, 100 Tex. Crim. 389.
The charge as we view it assumes a theory totally unsupported by the facts, is strongly adverse to appellant, and it burdens his case with a strongly criminative matter not connected or shown by the evidence and reasonably conveys to the minds of the jury the impression of the court that appellant voluntarily and with malice aforethought deliberately ran into the deceased. The defendant is always to be tried on the evidence adduced and not on facts not testified to, and the charge must conform to the proven facts. See Reeves v. State, 34 Texas App., 483.
We do not mean to hold that, if the trial court assumes and charges on a theory not raised or indicated by the evidence, such charge would warrant a reversal in every case. In the present case, however, considering the evidence, the transgression of the rule was prejudicial to the appellant.
The judgment reversed and cause remanded.
Reversed and 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.
ON MOTION FOR REHEARING.