The offense is murder; the punishment, confinement in the penitentiary for two years.
An automobile driven by appellant collided with the car in which Mrs. Ethel Andrews and her husband were riding. Mrs. Andrews was instantly killed. The collision occurred at night on a public highway. Appellant was driving the car at a high rate of speed and was exhibiting no lights. The owner of the car, Sid Whitten, who was riding with appellant, was also killed. The uncontroverted testimony was to the effect that appellant and Whitten were drunk.
The indictment charged that appellant operated the automobile while intoxicated and that "through mistake and accident he killed Ethel Andrews by then and there driving said automobile into and causing it to collide with the automobile in which the said Ethel Andrews was riding and then and thereby causing the death of the said Ethel Andrews."
Appellant contends that the evidence is not sufficient to warrant the conclusion that he was the driver of the car on the occasion of the collision. It appears from the testimony that a short time before the collision appellant drove Whitten's *Page 277 automobile to a filling station and bought some gasoline. Whitten was unconscious at the time. After the collision appellant and Whitten were found lying on the highway near the wrecked car. The front seats of the automobile were in the road. A witness testified: "Van Zandt [appellant] was lying under the left hand seat of the car, which would be the driver's seat. These seats were still fastened together. They were still together on the sill on which they were mounted. * * * I saw the defendant, Presley Van Zandt, later that night at the doctor's office. He was the same one that was under the driver's seat."
We deem the evidence sufficient.
The judgment is 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.