Grover Sellers
Hon. L. D. Eakman Opinion No. O-7044
County Attorney Re: Construction of Art. 802c, Penal
Montague County Code, as affected by holding in case
Montague, Texas of Smith vs. State, 179 S.W.(2) 965.
Dear Sir:
We have received your recent request for an opinion
on the following matter:.,
"Under Art. 802c.any person while driving
or operating an automobile or ,other vehicle while
int ;oxicate,d shall through accident or misteke do
another act which if voluntarily done would be a
felony shall receive the punishment affixed to
the felony actually ,committed.
"Under the present law driving an automobile
or other vehicle while intoxicated is a misdemeanor,
and will appreciate ytiur opinion' as to the law as
it applies to the ,following case.
"On the 19th of last month two persons were
killed in a wreck in this county. Ins one of the
cars was a man and his family and his wife and one
child was killed. In the other car was one man who
was drunk. I will appreciate your opinion whether
or not this man who was drunk should be indicted
under Art. 802~ of the Penal Code or should he be
indicted for negligent homicide.
"As I understand the case of Smith vs State,
179 S.W.(2d) 965, a person has to be convicted the
second time of driving while intoxicated before he
can be convicted of a felony under Art. 802~ of the
Penal Code."
The driving of an automobile upon a public highway
by a person while intoxicated is a misdemeanor under Article
802, Penal Code, but becomes a felony under Article 802b, Penal
Code, when such person has theretofore been convicted of such
offense.
Hon. L. D. Eakman, page 2
Article 802c, Penal Code, provides that a person
while so driving an automobile upon a public highway while
intoxicated who shall through accident or mistake do another
act which if voluntarily done would be a felony, shall re-
ceive the punishment affixed to the felony actually committed.
Article 42, P.C., provides that one intending to
commit a felony and who in the act of preparing for or execut-
ing the same shall through mistake or accident do another act
which, if voluntarily done, would be a felony, shall receive
the punishment affixed to the felony actually committed.
Article 1256, P.C., provides that whoever shall vol-
untarily kill any person within this State shall be guilty of
murder, and murder shall be distinguished from every other
species of homicide by the absence of circumstances which re-
duce the offense to negligent homicide or which excuse or
justify the killing.
Articles 1230-1243, P.C.; treat of the offense of
homicide by negligence. Art. 1241, P.C., provides that when
one in the execution of or in attempting to execute an act
made a felony by law shall kill another, though without an
apparent intention to kill, the offense does not come within
the definition of negligent homicide.
Said Art. 802, P.C., before its amendment in 1941
was a felony statute, that is, any violation of its provisions
was a felony. Since said amendment the first offense committed
thereunder by a person is a misdemeanor and every subsequent
violation thereof becomes a felony as to such person. Art.
802c, amending said Art. 802, obviously was enacted to apply
the rule announced in Art. 42, supra, which applies to felonies
generally, to the one specific misdemeanor offense, “drunk
driving,” as denounced by Art. 802. If the offense denounced
by Art. 802 had remained a felony in all instances there would
have been no occasion for the enactment of ,Art. 803c, because
,Art. 42 would be applicable.
In the case of Smith v. State (Crim.App.) 179 S.W.
(2) 965, mentioned by you, the following was said:
Hon. L. D. Eakman, page 3
“The driving of an automobile upon a public
highway by ,a person awhile int,oxicated ins a misde-
meanor under Art. 802, P-C., but becomes a felony
under Article 802b, P.C., when such person has
theretofore been convicted of such offense. Con-
sequently, in the absence of being charged with
having theretofore been c~onvicted of driving an
automobile upon a public highway while intoxicated,
he would not be guilty of a fe,lony. Therefore, to
bring the act of the appellant in the present case
within the purview of Art. 802c, P.C., his act of
intentionally driving an automobile, while intoxi-
cated, through a barbed-wire fence must constitute
a felony under the law. If it does not, he cannot
be convicted of murder under the undisputed facts
of this case. Therefore, unless he knew that the
deceased was on the fender of the car and did,
with a reckless disregard,of the lives ~of others,
drive the car through the fence, knowing that death
would be the natural and probable consequences of
his act, he would not be guilty of murder. ***
Therefore, unless appellant knew that the deceased
was on the rear fender of the car or had any rea-
son to believe that he or some other person was in
it there could not have been an apparent danger of
killing anyone.
1’***
‘I *** Had the appellant in the present case
known that the deceased was on the rear, ,fender of
the car and with full knowl,edge .thereof he had de-
liberately driven through the barbed-wire fence, an
entirely different question would be presented. Efad
ooellant. while under the inflwe of intoxi catinq
LXI or. driven the car UD n said hishwav and. bv ac-
cident or mistake. struck’the dece s d. whether he
saw him or not but where he shouldahtve expected
peoole to be. he would no doubt be aui Y under Art.
802~~ P.C.” (Underscored for emphasistt
It is our opinion from a careful study of the ruling
in the Smith case, that such case turned on the point of lack
of knowledge of the defendant Smith that the death of someone
would be the natural and probable consequence of his acts. We
believe the portion of said opinion next hereinabove under-
scored for emphasis, adequately states the proper application
of Art. 802~ on a state of facts analogous to those stated in
Hon. L. D. Eakman, page 4
your request. We do not believe it the purport of the opinion
in the Smith case, supra, that a prior conviction of driving
while intoxicated an automobile upon a public highway must be
shown before a conviction may be had under said Article 802c,
on a state of facts such as those submitted by you.
Therefore, it seems to us that you have the following
offenses to consider in forming the proper criminal charge
against the accused in question:
If the proof shows that the accused, whether intoxi-
cated or not, while driving an automobile upon a public high-
way, struck and collided with another automobile thereby caus-
ing the death of a person or persons in such other automobile,
said accused then and there driving said automobile in such a
reckless and dangerous manner as to evidence a disregard of
the lives of others so as to imply malice, such evidence will
sustain a conviction of murder with malice under the general
homicide law. See Cockrell vs. State, 117 S.W. (2) 1105.
If such proof fails to show such reckless disregard
of the lives of others as to constitute urnrder with malice,
but does show that such act was done by accident or mistake
as a result of the intoxication of accused, while accused was
driving an automobile on a public highway such evidence will
sustain a conviction of murder without ma&ice under ,Art. 802c,
P.C.
If said accused was not in the execution of or at-
tempting to execute an act made a felony by law when he per-
formed the act in question, he may be convicted of negligent
homicide. In this connection we point out that the count in
the indic tment charging murder will support a conviction for
negligent homicide if proper instructions are given. See
Guerra v. State, 288 S.W. 1084.
A safe practice in drawing an indictment in any case
is, if there is any doubt as to which of several charges the
proof will substantiate, that as many of such charges as are
applicable and necessary be placed in the indictment, each In
a separate count’,, in order that the one properly fitting the
proof may be chosen by the court or the jury. It is our sug-
gestion in the case in question that two counts be placed in
the indictment, one for murder with malice as in the Cockrell
and one under said Art. 802c, as in Fox V. State,
g%~:“T~r 733.
Hon. L. D. Eakman, page 5
It is to be understood that we are merely applying
the law generally to a general state of facts, and in no event
is it to be construed that we are attempting to direct the
course of the prosecutivn herein, as that is the duty of the
proper authorities who are in position to know what facts will
be adduced on the trial of the case.
In support hereof we are herewith enclosing a copy
of our Opinion No. O-3845 which gives the text of niost of the
statutes in question, together with quotations from pertinent
authorities.
Yours very truly
ATTORMEY
GENERAL
OF TEXAS
By /s/ Robert L. Lattimore, Jr.
Robert L. Lattimore, Jr.
Assistant
APPROVED
JAR 29, 1946
/s/ Ocie Speer
(Acting) ATTORNEY
GENERAL
OF TEXAS
APPROVED:OPINIONCOMMITTEE
BY: BWB, CHAIRMAN
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