Ebbs v. State

ON MOTION FOR REHEARING.

HAWKINS, Judge.

There is no merit we think in appellant’s renewed contention that the judgment should be reversed because the court permitted a witness to testify that about a week after the collision the sheriff telephoned him to come to Fate as he thought he had the man located who had hit Goodman. It is true this was hearsay but it is not every hearsay statement which demands a reversal. There being no issue at the trial relative to the identity of appellant, the admission of the testimony complained of was harmless.

In view of appellant’s motion we have again examined the special charges requested, and think the court was not in error in refusing to give them. The first was a request for a peremptory instruction, which was properly refused; the second, in substance, requested the court to instruct the jury that if, because of the position in which appellant found himself at the time of. the collision, he could not by the use of ordinary care have prevented the same after the danger was discovered by him he should be acquitted. This is not the law. It may have been the result of gross negligence which placed appellant in the position that brought about the collision. The third charge sought to have the jury instructed that if appellant’s car collided with the car driven by Goodman, but that appellant “by accident or without any intent collided with Goodman’s car they should acquit him.” This charge was properly refused as it does not present a. correct proposition of law. The fourth special charge sought to have the jury instructed as to the meaning of the term “gross negligence” which would not have been inappropriate, but coupled with it there is a concluding sentence by which it was sought to have the jury told that in order to convict they must find that the gross negligence, if any, “was the sole cause of the collision.” We think this does not contain a correct proposition of law. There might have been other contributing causes, but if appellant was guilty of gross negligence in driving his car against that of the party injured the law does not demand that his negligence be the sole cause of the accident. This being a misdemeanor case it was necessary not only that the omission in the main charge be called to the court’s attention by proper exception, but that correct special charges be requested to cure the omission. The charges refused not being correct, the learned trial judge was not in error in refusing to give them.

The motion for rehearing is overruled.

Overruled.