Appellant attacks the third averment of negligence in the complaint and information herein wherein appellant was charged with negligence "* * * (c) in failing to guide said motor vehicle away from the said Dorothy Lee Pollard as a man of ordinary care and prudence would then and there have done under like circumstances, and the said Robert E. Taubert without an apparent intention to kill, but there being then and there an apparent danger of causing the death of the said Dorothy Lee *Page 586 Pollard, or some other person by reason of said act and acts of negligence, and while so driving and operating said motor vehicle as aforesaid, did then and there and thereby carelessly, negligently and unlawfully, drive and operate said motor vehicle" * * * against an automobile in which the girl was riding, and thus caused her death.
It is contended by appellant that the pleadings of the State should have particularized in what way or manner appellant drove his motor vehicle, this being a case of negligent homicide. He admits the validity of the reasoning in the Hernandez case, quoted in the original opinion, in so far as a prosecution for aggravated assault would lie, but contends that when one is prosecuted under the latter portion of Art. 1149, P. C., as quoted in the original opinion, then a different rule of pleading applies. In other words, in a complaint for an aggravated assault thereunder it is not necessary to plead explicitly the acts relied upon as negligence; not so, however, when the injuries thus inflicted resulted in death. We are not in accord with such a doctrine. Again, we think that the pleadings of the State herein do set forth in plain and intelligible words the complained of act of negligence, that is that appellant failed to guide his motor vehicle away from Dorothy Lee Pollard as a man of ordinary prudence would have done, and did carelessly and negligently drive his motor vehicle against an automobile in which the girl was riding, and thus caused her death. We are unable to see what further allegation was necessary to be made by the State. Such seems to have particularized the acts of negligence clearly enough to show that appellant negligently drove into a car containing this girl and thereby killed her. We think the allegations properly charge negligent homicide in the first degree.
We see no merit in this motion, and no reason to recede from the views expressed in the original opinion. The motion will therefore be overruled.