Allen v. State , 148 Tex. Crim. 606 ( 1945 )

Appellant was convicted by a jury in the county court of Dallas County for driving an automobile on a public highway while intoxicated, and was assessed a fine of $250.00 and two years in the county jail.

On March 3, 1945, appellant's motion for a new trial was overruled, and at such time he gave notice of appeal to this court. No time was fixed by order of the court in which to file bills of exceptions. Thereafter, on April 26, 1945, the trial court entered an order granting an additional fifteen days in which to prepare and file statement of facts and bills of exceptions. We find a further order, not showing the date of its entry, granting a further seven days for such purpose.

From the record it is shown that 53 days had elapsed since the entry of the order overruling the motion for a new trial, and giving of the notice of appeal, until the granting of the additional fifteen days. Under Art. 760, C.C.P., Section 5, in the event of no mention being made of the time granted for the filing of bills of exceptions in the lower court, the statute itself grants 30 days therefor. This extension of fifteen days came more than 30 days after the statutorily granted time, and, therefore, came too late. See Davis v. State,123 S.W.2d 345; Barrera v. State, 147 S.W.2d 477; Hall v. State,162 S.W.2d 106; Vol. 13, Texas Digest, Criminal Law, Key number 1092 (7), p. 577. Appellant's bills of exception will not be considered.

There is a motion to quash the information, and a motion in arrest of judgment, which demand our consideration. These raise a question as to the validity of the complaint. The allegation in the complaint and information, upon which the conviction was had, reads in part as follows:

"* * * the Criminal District Attorney aforesaid further presents in and to the said court that said defendant, Jessie Allen, heretofore on or about the 10th day of December, A.D. 1944, in the County of Dallas and State of Texas was intoxicated, and under the influence of intoxicating liquor, and while so intoxicated and under the influence of intoxicating liquor did unlawfully drive and operate a motor vehicle, to-wit: an automobile, upon a certain public road and highway, to-wit: McKinney Ave. Viaduct; against the peace and dignity of the State."

The appellant contends that, though the information alleges he was intoxicated in Dallas County, it fails to allege that he was on a public highway in the same county. The question before us is one of construction of the language. The law is not in dispute. It states that he was intoxicated in Dallas County "and did unlawfully drive and operate a motor vehicle, to-wit: an automobile, upon a certain public road and highway, * * *." If the quoted phrase refers to the same time during which he was intoxicated, that would place his driving in the same county. Considering all of the language, no other meaning can be given to it. From the discussion of many cases the finding and meaning of the word "while," as found in Vol. 45, Words and Phrases, Permanent Edition, p. 80, is the same as "during," "during the time," "during the existence of," "as long as," "at the same time as," and "so long as." It is sometimes called an adverb of duration, being an apt word to express limitation, etc. We call especial attention to Greener v. Nielhaus,89 N.E. 377, where it was used in a like expression — "while [he] was in an intoxicated condition." It was there construed to mean "at the same time." This being our conclusion, it naturally follows that his driving on the viaduct was in Dallas County. The question thus raised is not without its difficulties and, though we are of the opinion that jurisdiction was shown in the Dallas County Court, in the case now before us, we are aided in that by a full consideration of the language and are not able to say that it is a frivolous objection which has been brought by the appeal to this court. We recommend that a more specific charge be made as to jurisdictional facts. We are able to sustain the complaint, after a full consideration of all of the language, in the face of the very loose pleading giving rise to the exceptions.

The judgment of the trial court is affirmed.