Evans v. State , 141 Tex. Crim. 241 ( 1941 )

The offense is negligent homicide. The punishment assessed is a fine of $1,000.00.

The complaint and information contain two counts: One charging negligent homicide in the first degree, and the other charging negligent homicide in the second degree.

Upon his case being called for trial, appellant waived a jury and submitted all issues, both of law and fact, to the court, who found him guilty of negligent homicide without stating of what degree, and assessed his punishment at a fine as above stated.

Appellant, for the first time here, takes the position that since the information contains two counts and the judgment of conviction fails to specify upon which count he was adjudged guilty, therefore the judgment is void. Appellant's contention might be correct unless this court can, from the statement of facts, determine which of the two counts charging the act constituting the offense is sustained by the testimony. An examination of the statement of facts discloses that appellant, by his own testimony, together with that of other witnesses, supported the allegations of negligence charged in the first count, while the testimony is deemed insufficient to sustain the allegations of negligent homicide in the second degree.

There is no direct evidence that appellant violated the speed limit. The only testimony on the subject was that given by the witness Alexander, who testified as follows:

"I saw this (appellant's) car coming about 60 or 70 feet before it struck old man Hightower; I could not tell how fast the car was coming but it wasn't coming slow and the horn wasn't sounded, and the car didn't act like the brakes had been put on and it come right straight at old man Hightower and knocked him down just like I told you. * * * It didn't look to me like he done anything to avoid hitting this old man."

Appellant testified as follows:

"I was proceeding down Heiner Street and saw Hightower about 60 feet away. I continued driving straight on and the next time I looked up there was Hightower right in front of my car. I ran into him, knocked him down, stopped in a few feet, backed my car off of him, and there he was lying in the street. * * * I did not turn my car to avoid hitting Hightower because I saw him 60 feet away and didn't see him any more until I was right on him and I didn't have time to do anything. I do not know why I didn't see him; there was nothing to obstruct my vision; I just didn't see him."

There is some evidence that appellant failed to sound the horn but no such direct allegation is contained in the information.

These were the only eye-witnesses to the unfortunate occurrence. The testimony quoted supports the allegations in the first count charging appellant with negligent homicide in the first degree. Consequently the court must have found him guilty of the offense supported by the evidence. If there had been sufficient evidence to have also supported a conviction under the second count charging negligent homicide in the second degree a more difficult question might have been presented.

Therefore, two questions present themselves for our consideration: First, whether or not this court is authorized by law to reform and correct the judgment; and second, whether or not the record is in such a condition that we may, from the recital therein, reform the judgment. We are of the opinion that both of the questions may be answered in the affirmative. Art. 847, C. C. P., expressly authorizes this court to reform and correct judgments, as the law and the nature of the case may require. See also 4 Tex., Jur. p. 603, sec. 423; Wooten v. State, 15 S.W.2d 635; Knott v. State, 247 S.W. 520; Swartz v. State, 18 S.W. 415; Waters v. State, 137 Tex.Crim. R.; Thomas v. State, 31 Tex.Crim. R.; Purcelly v. State, 29 Texas Cr. App. 1; Towles v. State, 133 Tex.Crim. R., (112 S.W.2d 458); Byrd v. State, 90 Tex.Crim. R., (235 S.W. 891) Southern v. State, 29 S.W. 780.

This case is readily distinguishable on the facts from that of Bowles v. State, (No. 21,257), decided by us on January 8, 1941, (140 Tex.Crim. Rep.) because in the present case we have a statement of facts which furnishes the necessary data for the reformation and correction while in the Bowles case we had no statement of facts.

The judgment will therefore be reformed so as to adjudge appellant guilty of negligent homicide in the first degree with the punishment as assessed by the trial court.

As reformed, the judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON APPELLANT'S MOTION FOR REHEARING.