The prosecution is under Article 820k, Vernon's Texas Criminal Statutes, Supplement 1918, being Section 16 of *Page 513 the Act of April 9, 1917, Chapter 207. The penalty attached to this statute is in the Act of May 19, 1917, First Called Session, Chapter 31, Section 45, and of the Act of October 10, 1917, Chapter 13, Section 45, the penalty prescribed being for the first offense not exceeding $100. Subdivision F of Article 820-K is as follows: "It shall be the duty of the person operating or in charge of an overtaking vehicle to sound audible and suitable signal before passing a vehicle proceeding in the same direction."
In the count in the information under this phase of the statute the following is charged: ". . . did then and there while driving a motor vehicle upon a public highway in said State and County attempt to pass another vehicle by overtaking said vehicle without then and there sounding audible and suitable signal before passing said vehicle going in the same direction."
We do not think the information is subject to the criticism addressed to it, that it charges no offense in that the statute does not denounce an attempt to pass a vehicle. The apparent purpose of the statute is to prevent accidents or injuries by requiring that the person in charge of an approaching vehicle shall give warning before passing one which he is overtaking. The facts in the instant case show that the appellant while in the act of passing a vehicle which he overtook caused his car to strike the vehicle and injure both it and some of its occupants. It occurs to us that the statute made it his duty to sound a warning before he was in a position to collide with the vehicle he was passing, and that the fact that the passing was prevented by the collision would not take the act out of the terms of the statute. The pleading might well have been made more specific by an allegation identifying the vehicle unlawfully passed. The omission, however, we think would not have been available except upon special exception.
The appellant, it seems, at the time of the collision was driving his car at night-time without lights. The absence of lights is explained by the fact that the lights were defective and went out a number of times upon the trip which the appellant was making. The fact that he chose to drive his car at night when it was in a condition that the lights would not burn would not, as a matter of law, excuse him for the failure to give the signal required by the statute.
The judgment is affirmed.
Affirmed.
ON REHEARING. February 23, 1921.