Humphrey v. State , 159 Tex. Crim. 396 ( 1953 )

BELCHER, Judge.

Appellant was convicted for the offense of driving an automobile upon a public highway while intoxicated, and his punishment was assessed at ten days in jail and a fine of $50.

Marvin E. Shelley testified that he saw appellant on February 28, 1953, driving a gasoline transport truck upon a public highway between Wichita Falls and Iowa Park, and appellant passed another truck after four or five attempts and then drove down the middle of the highway. Shelley further testified that he passed appellant’s truck and then stopped in Iowa Park and returned with Deputy Sheriff Jones on this highway to where appellant was in his truck, which was parked in the bar ditch. He further testified that appellant was “thick tongued,” staggered and, in his opinion, was drunk.

J. F. Scott and Jerry Smith, Highway Patrolmen, each testified that they saw appellant on February 28, 1953, standing by his truck east of Iowa Park; that appellant didn’t talk plainly, was unsteady on his feet, and they smelled alcohol on his breath, and in their opinion he was drunk.

Deputy Sheriff Jones testified that he saw appellant east of Iowa Park on February 28, 1953, observed his speech, saw him walk, smelled alcohol on his breath and, in his opinion, he was drunk.

M. D. Kelley testified for the defense and stated that he saw appellant on February 28, 1953, and he appeared to be sick; that he saw appellant drink “two beers,” but that he was not intoxicated.

Mrs. Humphrey testified that she was the wife of appellant and that on, the morning of February 28, 1953, appellant was sick with the flu and had a toothache.

Appellant testified that on February 28, 1953, he had a high fever with a tooth that had given him trouble for two. or three days and he had taken anacin, aspirin and B-C headache powders. He further testified that he drank two bottles of beer that evening but that he was not drunk; that he parked his truck on the side of the road and had gone to sleep when “a man woke me up.”

The jury resolved the issue against appellant, and we find the evidence sufficient to support the verdict.

Appellant contends that the court erred in refusing to submit his special requested charges to the jury, the same being that if they found appellant was suffering from an illness, or loss of sleep or was under the influence of aspirin or anacin, and was not under the influence of intoxicating liquor, then to find him not guilty.

The evidence fails to show any independent fact or condition except that of non-intoxication, which if true, would entitle the appellant to an acquittal. The issue of intoxication was properly submitted to the jury, which was resolved against appellant. Therefore, the failure to submit said charges was not error. Gilmore v. State, 158 Tex. Cr. R. 534, 257 S.W. 2d 300; Sharp v. State, 150 Tex. Cr. R. 169, 199 S.W. 2d 159.

Appellant complains of the failure of the court to give his special requested charge on circumstantial evidence.

Several witnesses testified as to smelling alcohol on appellant’s breath, and appellant in his testimony admitted drinking two bottles of beer. This evidence rendered a charge on circumstantial evidence unnecessary. Kimbro v. State, 157 Tex. Cr. R. 438, 249 S.W. 2d 919.

We have examined each of appellant’s bills of exception and find no error shown.

Finding no reversible error, the judgment of the trial court is affirmed.

Opinion approved by the Court.