Farmer v. State , 119 Tex. Crim. 212 ( 1931 )

MORROW, Presiding Judge.

The prosecution is under article-802, P. C., 1925, denouncing as an offense the driving of an automobile upon the public highway while intoxicated or under the influence of intoxicating liquor; penalty assessed at confinement in the penitentiary for a period of two years.

The indictment also charges that the appellant had previously been convicted of an offense of the same nature, and sought, under article 62, P. C., an enhancement of the penalty.

In his charge, the court copied from the language of the statute as-follows: “While such person is intoxicated or in any degree under the influence of intoxicating liquor.”

In instructing the jury as to the authority for convicting the accused, the court used the following language: “* * * did then and there-unlawfully drive or operate an automobile upon a certain street or streets-within the city limits of Austin, an incorporated city in said County and State, while he, the said Rip Farmer, was then and there intoxicated or under the influence of intoxicating liquor, as charged in the indictment.”

Touching the clause in the statute, “in any degree under the influence of intoxicating liquor”, there are a number of expressions of this court indicating that it should not be used, either in the indictment or charge of the court.

In the case of Williams v. State, 100 Texas Crim. Rep., 50, it is said: “These words, though found in the statute, were not used in the indictment. We are therefore not called upon to discuss them. Their use in the statute, however, does not render it invalid in so far as it denounces as an offense the driving of an automobile upon the public-highway by a person who is intoxicated or under the influence of intoxicating liquor

In the case of Nunn v. State, 114 Texas Crim. Rep., 487, 26 S. W. (2d) 648, it is said: “We have heretofore stated that the term did not-invalidate the statute, but' that the language quoted (to any degree under the influence of intoxicating liquor) was of questionable sufficiency in an indictment, and its use in a charge was of doubtful propriety.”

Other cases are to the same effect, namely, that where the statute, properly defines the offense, charging that the accused was intoxicated or under the influence of intoxicating liquor, and responsive to the evidence that issue was submitted to the jury, the fact that the additional words-“to any degree under the influence of intoxicating liquor” are contained in the statute or in the indictment, is not of itself ground for annulling-the conviction. See Nunn v. State, supra; Fuller v. State, 116 Texas Crim. Rep., 310, 32 S. W. (2d) 558.

In the present case, the indictment properly charged the offense, and in submitting the case to the jury, the court defined it, omitting the clause, “to any degree under the influence of intoxicating liquor”. The-fact that the statute was copied in the general statement of the court’s charge embracing the definition of the offense is not regarded as warranting a reversal of the judgment.

The judgment is affirmed.

Affirmed.