The offense is driving an automobile on a public highway while intoxicated; the punishment, a fine of ten dollars.
Appellant operated a school bus in the city of Wellington. Witnesses for the State testified that they observed him driving said bus on a street in said city on the 29th of October, 1935; that there was a small boy in the bus with him; that appellant complied with their request to get out of the bus; that in their opinion he was drunk. One of the witnesses testified: "In my judgment, based on my experience, I would say that the defendant, *Page 71 Jim White, was drunk at that time. I say that because of the way he talked and the way he walked and the smell of his breath. His tongue was a little shaky and thick and he talked right smart. I have had occasions to observe him when he wasn't under the influence of intoxicating liquor, and at those times he was not talkative. I noticed that the defendant couldn't walk straight either." We quote from the testimony of another witness for the State: "I remember the occasion when he (appellant) was arrested on or about the 29th of October, charged with drunkenness in connection with being in a school bus here in Wellington. I saw the defendant on that date right in front of my house. He was driving along and ran into a ditch and against a post. When he hit that post he backed back and picked up a half pint bottle and emptied it and run against the post and backed back I guess five or six times before he could get the car out of the ditch. * * * He threw the bottle down."
Testifying in his own behalf, appellant denied that he had been drinking on the occasion in question. It was his version that he was sick. He introduced witnesses who gave testimony corroborating him.
The indictment read as follows:
"IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS.
"The grand jurors, duly selected, organized, sworn and impaneled as such for the County of Collingsworth, State of Texas, at the regular November term, 1935, of the District Court of said County, a quorum thereof being present, upon their oaths present in and to said court that on or about the 29th day of October, A.D. 1935, and anterior to the presentment of this indictment, in the county and state aforesaid, Jim White.
"Did then and there unlawfully drive and operate a motor vehicle upon a public highway situated within said county and state, while he, the said Jim White, was then and there under the influence of spirituous, vinous and malt intoxicating liquors.
"Against the peace and dignity of the State."
Appellant filed a motion to quash the indictment predicated upon the ground that it was indefinite in that the location of the highway was not alleged therein. The motion was properly overruled. It is stated in the opinion in the case of Nichols v. State, 49 S.W.2d 783, that in the second count the indictment charged that Nichols, while intoxicated, operated an automobile upon a public highway in Coleman County, Texas. In *Page 72 the opinion this court said: "We further believe that the allegations in the second count were sufficient." An examination of the record in said case discloses that the second count of the indictment read as follows: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present in and to said court that Edna Nichols, on or about the 10th day of June, A.D. 1930, and anterior to the presentment of this indictment, in the County of Coleman and State of Texas, did then and there unlawfully, while intoxicated, and while under the influence of intoxicating liquor drive and operate an automobile, on a public highway, against the peace and dignity of the State." The record in said case also discloses that in submitting the case the court, in the beginning of the charge, instructed the jury as follows: "In this connection the defendant stands charged by indictment with the offense of operating an automobile upon a public highway in Coleman County, Texas, while intoxicated, said offense alleged to have been committed on or about June 10, 1930."
In Blackman v. State, 20 S.W.2d 783, it was charged in the indictment that the offense was committed while Blackman was driving a motor vehicle upon a public highway situated in Randall County, Texas. The judgment was affirmed.
Appellant contends that there is a variance between the proof and the allegation in the indictment as to the place where the automobile was operated. In short, it is his position that proof that the car was operated on a public street in the city of Wellington will not sustain the allegation that said car was operated on a public highway in the County of Collingsworth. This contention can not be sustained. We have expressly held that a street within a city is a public road within the meaning of the statute. Blackman v. State, supra. As already observed, in Blackman's case the indictment charged that, while intoxicated, the accused drove a motor vehicle upon a public highway situated in Randall County, Texas. The proof on the part of the State was to the effect that the car was driven upon various streets of Amarillo, an incorporated city. It was also shown that certain of the streets of Amarillo upon which the car was driven were in Randall County, Texas. We held that there was no variance.
In bill of exception No. 1 appellant complains of the refusal of the court to grant his first application for a continuance, which was based on the absence of two witnesses. The application was fatally defective in failing to embrace an averment *Page 73 that it was not made for delay. Subdivision 5, Art. 543, C. C. P.; Zumwalt v. State, 5 Tex. App., 525; Perkins v. State,46 S.W.2d 672; Boxie v. State, 81 S.W.2d 692.
It is shown in bill of exception No. 4 that appellant presented to the court a written motion to exclude the testimony of the justice of the peace to the effect there appeared on the docket of his court a plea of guilty by appellant to a charge of drunkenness, which said charge grew out of the transaction involved in the present case. It is averred in the motion, among other things, that no complaint had been filed against appellant at the time the plea of guilty was entered. After setting forth the written motion, the bill concludes with the statement that the court overruled same and declined to withdraw said testimony. There is nothing in the bill in support of the averments embraced in the motion. Under the circumstances, it is insufficient to reflect error.
Bill of exception No. 3 recites that the justice of the peace testified, over appellant's objection, that after he had been charged with drunkenness appellant stated to him, in substance, "that that was one time he hadn't been falsely accused," and further, that he stated, in substance, that he was drunk on the occasion in question. We think appellant's objection that the testimony was a conclusion of the witness and inadmissible was properly overruled. There is nothing in the bill of exception indicating that the statement was inadmissible under the provisions of Art. 727, C. C. P., relating to confessions of the accused while under arrest.
Bill of exception No. 9 relates to alleged misconduct of the jury. Three jurors testified that prior to the time a verdict had been reached, a juror stated that he knew appellant and he was a drunkard. The juror to whom said statement was attributed testified that the jury had already agreed upon a verdict when he referred to the fact that appellant was a drinking man. He testified further that he merely stated that he had known appellant for a number of years and that he was a drinking man. It was shown in the evidence on the trial of the case, without objection, that appellant was a drinking man. Appellant himself testified on his direct-examination: "I drink a little, of course, but when I started this job driving I quit. I told everybody I would quit." The trial judge was warranted in concluding that if the statement attributed to the juror was made it was after the jury had reached a verdict. The further conclusion was warranted that said juror merely stated that he had known appellant for several years and that he was *Page 74 a drinking man. Under the circumstances, we think the bill of exception fails to reflect error.
A careful examination of the record leads us to the conclusion that reversible error is not presented.
The judgment is affirmed.
Affirmed.
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.