Mitchell v. State , 166 Tex. Crim. 201 ( 1958 )

MORRISON, Presiding Judge.

The offense is aggravated assault with a motor vehicle; the punishment, a fine of $250.00.

The sufficiency of the evidence to show that it was appellant’s truck that collided with the injured party is seriously challenged.

Appellant’s confession recites that he was driving his truck on Yale Street on the night in question, that an automobile pulled alongside him and someone told him there had been an accident back up the street, and that he got out and went back to the scene of the accident, but nowhere therein does he admit having hit anyone. Apparently he did not know he had done so, if, in fact, it was his truck which had caused the injury.

At the conclusion of the testimony, appellant’s counsel entered into a stipulation, without the joinder of the accused himself, but even this stipulation does not agree that it was the appellant’s truck which hit the injured girl.

The state called the witness Gloria Pillar, who testified on direct examination that she saw the appellant at the scene of the accident talking to some officers after Henrietta had been struck.

On cross-examination, she stated, “I seen him (the appellant) when they brought him there (the scene of the accident), I didn’t see him driving the truck.”

On re-direct, she pointed to someone “sitting over there” and said that she had seen him in the truck as it went by.

On re-cross, she said, “I didn’t see his face but I know that he is the one,” and, when being asked, “You didn’t see his face, did you ?” answered, “I saw the side of him.”

Surely, if the appellant, who was completely cooperative with the police, did not know he had caused any injury to anyone, we would not be authorized to uphold conviction upon the vague and inconsistent testimony of the witness Pillar.

Upon another trial, the state should be sure all its witnesses are available before announcing ready for trial.

The judgment is reversed and the cause remanded.