The charge against appellant was that he drove an automobile on a public highway while "under the influence of intoxicating liquor," and by mistake and accident killed three named parties, etc.
The accident occurred on November 27th, 1935. At that time Art. 802, P. C., denounced "drunken driving" as a felony providing that one was guilty who drove an automobile on a public highway while the driver was "intoxicated or in any degree under the influence of intoxicating liquor." The 44th Legislature, 1st C. S., Ch. 424, p. 1654, amended Art. 802, P. C., omitting the words "in any degree under the influence of intoxicating liquor," and made one guilty of a felony who drove his car while he was "intoxicated." This Act had been passed and approved by the Governor before the accident occurred, but the amended Act did not become effective until January 13, 1936. The indictment was returned on January 23rd, 1936. It is appellant's contention that when the indictment was returned it was by the terms of amended Art. 802 not an offense to operate a car on the highway while the driver was "under the influence of intoxicating liquor" because the latter phrase had been omitted from the amended article, and therefore that the count in the indictment under which conviction occurred charged no offense of drunken driving, by averring that appellant was "under the influence of intoxicating liquor," but that such offense could only be charged by following the language of the amended law and averring that he was "intoxicated."
Art. 397, C. C. P., provides that "Everything should be stated in an indictment which is necessary to prove." It is generally accepted to be the better practice to follow the language of the statute in charging an offense, but this is not always sufficient, nor indispensable. If words not in the statute are substituted for those which are, the indictment is sufficient if the words so substituted are equivalent to those used in the statute, 23 Tex. Jur., Sec. 34, p. 635; Branch's Ann. Tex. P. C., Sec. 495, p. 256; Sullivan v. State, 13 Texas Crim. App., 462; King v. State, 169 S.W. 675. In Lockhart v. State, 108 Tex.Crim. Rep., 1 S.W.2d 894, a prosecution for "drunken driving," the court charged the jury that by the terms "intoxicated" or "under the influence of intoxicating liquor to any degree" was meant that a person had taken into his stomach a sufficient quantity of intoxicating liquor as to *Page 402 deprive him of the normal control of his bodily or mental faculties. While holding it unnecessary to have defined the terms, we also held the instructions given to have been correct, thereby in effect holding the terms "intoxicated" and "under the influence of intoxicating liquor" to mean the same thing. In Williams v. State, 100 Tex.Crim. Rep.,271 S.W. 628, practically the same holding was announced, it being said:
"If the indictment had simply alleged that the appellant was under the influence of intoxicating liquor, it certainly might have proved under that averment that he was drunk. Under an allegation that he was intoxicated the same proof would have been admissible."
See also Herring v. State, 117 Tex.Crim. Rep., 35 S.W.2d 737; O'Conner v. State, 88 S.W.2d 1048. In view of the expressions from this court that the two terms mentioned meant the same thing; that is, that in either case a party had been deprived of the normal control of his bodily or mental faculties from the use of intoxicating liquor, it might well be supposed that the Legislature in the amendment of said Art. 802, P. C., could see no good reason for using both expressions again.
We are not able to comprehend how it could be averred that a person was "intoxicated" without having embraced therein also a charge that he was "under the influence of intoxicating liquor," nor how an averment that he "was under the influence of intoxicating liquor" was not equivalent to charging that he was "intoxicated." It follows that we remain of opinion that the court was not in error in declining to quash the count in the indictment under which conviction was had.
In his motion for rehearing appellant cites us to Morton v. State, 43 Tex.Crim. Rep., 67 S.W. 115, as contrary to our disposition of the question presented in bill of exception number seven. It will be noted that in the case mentioned there had been no reference by appellant to the incident proven by the State. In the present case appellant had placed upon the witness stand Mr. Hoherd and proved by him that from hearing appellant talk and from observing him at the city hall witness thought he was not intoxicated. Hoherd testified at the instance of appellant that when the latter walked into the city hall he spoke, saying "Good evening, gentlemen," to those present. One of them was the witness Rose, who was later called by the State. He also heard appellant *Page 403 talk and observed him, on the same occasion about which Hoherd testified. Rose reached the conclusion that appellant was intoxicated. During the same conversation Rose heard appellant say "He supposed he was the cause of a bad accident where some people were killed — they told him so." Rose could quite naturally base his opinion that appellant was intoxicated in part at least on a natural inference that appellant seemed hazy in his own mind as to what had happened. The conversation and incidents to which Rose referred were a part of the same conversation and incident which had been gone into by appellant through the witness Hoherd. The complaint urged by appellant seems answered by Art. 728, C. C. P., which provides:
"When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence."
The facts thus appear to distinguish this case from Morton v. State (supra).
Believing proper disposition was made on original submission, the appellant's motion for rehearing is overruled.
Overruled.