DocketNumber： No. 20110.
Judges： Beauchamp, Krueger
Filed Date： 10/11/1939
Status： Precedential
Modified Date： 11/15/2024
The conviction is for negligent homicide. The punishment assessed is a fine of $500.
Appellant and Henry Arnold were jointly charged with negligent homicide by complaint and information which contained four counts. The first two charged negligent homicide in the first degree; the third and fourth charged negligent homicide in the second degree. Appellant was alone put on trial and found guilty of negligent homicide in the second degree and assessed a punishment as above stated.
The testimony, adduced by the State, shows that on Sunday, February 6, 1939, appellant, Henry Arnold, Walter Feigenbaum and J. Rickland left San Antonio for Austin about eight a. m. in an automobile. Arnold, who was driving the car, testified that appellant asked him to drive as he had been recommended to him as an experienced and careful driver. He stated that he drove at rates varying from fifty to fifty-five miles per hour. That when they reached a point on the highway near Buda where the Goforth Road crosses the San Antonio-Austin Highway, they collided with an old model T Ford in which C. J. Bardle and Ole Blackwell were riding. This car appears to have been traveling at approximately twenty miles *Page 628 per hour. Immediately before the collision, appellant called Arnold's attention to this old car which was attempting to cross the highway and warned him to watch out. Arnold immediately applied the brakes, causing the car to skid. Arnold stated that at that time he was driving on the right hand side of the white marker which indicated the center of the highway He further testified that he also saw a car coming from the direction of Austin and it would have been impossible to have gone around the back end of the Ford without having a head on collision with the oncoming car.
Feigenbaum, one of the other occupants of the car besides Arnold and appellant, was the only person who testified for appellant. He stated that the car in which they were traveling was running about thirty-five to forty miles per hour.
Appellant's first complaint is that the court erred in declining to sustain his motion to quash the complaint and information on the ground that appellant and Arnold could not be co-principals in the commission of the offense charged, because it was a physical impossiblity for both to be driving the same car at the same time and place.
This proposition is, of course, true as a physical fact, but is not true as a legal proposition. Appellant could be a coprincipal by urging and encouraging Arnold, the driver, to drive the car at a speed in excess of that allowed by law, and yet never touch the mechanism by which the car is put into motion and by which it was being operated.
It is true, however, that in order to bring appellant within the term "principal" he must have aided, abetted or encouraged by words or gestures, the driver to violate the speed law, which act, according to the State's theory, led to the collision and caused the death of the injured person. See Art. 66 P. C. The solution of this question depends, of course, on the evidence. If there is no evidence in the record to show encouragement by words or gestures, then the proof fails to sustain the conviction, since in no way did appellant aid or abet in the act and therefore could not be a co-principal. The only testimony which we have been able to discover in the record that might be construed as "encouraging by words or gestures" is that given by the State's witness, Arnold, who testified that appellant did not discuss the rate of speed, but did say that he, Arnold, was a good driver; that said statement was made at a time when he was driving at about fifty or fifty-five miles per hour. That if appellant had been dissatisfied with the speed, he should have said so. Again, Arnold testified that at one *Page 629
time appellant remarked to the two occupants of the back seat about how smoothly the car was running. He stated that from the time of that remark to the time of the fatal accident, the car did not slow down. No other testimony appears in the record which could be construed as encouragement given Arnold, the driver, by appellant. Can these statements be construed as coming within the meaning of encouragement so as to bring appellant within the category of a principal? We think not. In the case of Floyd v. State, 29 Tex.Crim. Rep.,
To make appellant a co-principal, he must have known, or it must have been apparent to him, that the driver was exceeding the legal speed limit, and by words or gestures encouraged him to do so. Unless it can be said that as owner of the car and employer of the driver at the time, he had general control of both and this constituted him a principal, he cannot be held liable. Even if it could be said that under such circumstances he could be a co-principal, a conviction could not be sustained in the absence of a showing by proof beyond a reasonable doubt that he knew the driver was exceeding the speed limit, or proof that the speed was so excessive that he should have known. There is testimony in the record which shows that appellant was not an efficient and experienced driver, and for this reason he sought out Arnold who had been recommended to him as such. Can it be said that appellant was criminally negligent in sitting by the side of this driver and failing to constantly keep his eyes upon the speedometer when he had been assured that he had engaged a careful and experienced driver? We do not think so under the circumstances of this case.
It follows that the State, in order to make appellant a co-principal, was required to show that appellant knew that the driver was exceeding the legal speed limit and by words or acts encouraged such conduct, or that he failed to remonstrate with a driver over whom he had general control.
It will be noted from an analysis of the law of principals *Page 630 that mere tacit acquiescence or words which amount to a bare permission are not sufficient to constitute one a co-principal. It is an axiomatic truth that one cannot encourage the commission of an unlawful act or instigate it unless he has knowledge that it is being, or is about to be committed. The same would be true of a person who has the general control of an automobile and the driver, where there is no such knowledge.
To one experienced in the management and operation of an automobile, a slight variation in speed from that of the legal speed limit would not be readily perceptible. Especially would this be true in such a case as the instant one where it is shown by the proof that the appellant was engaged for the most part in talking to the occupants of the back seat. Of course had the excess in speed been greater, it might have given rise to a presumption that appellant would have known of the illegal act and been under a duty, since he had general control to curtail it. But where the speed of the automobile might have, at times, exceeded the legal rate and been under it at other times, we think the State ought to be required to show knowledge of the excess at a particular time. This they have not done in the instant case. It follows that the evidence is insufficient to support the conviction.
In view of the disposition we are making of the case, the many other matters complained of by appellant need not be discussed, since they will probably not occur again on another trial.
The judgment is reversed and the cause remanded.
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.