O'Conner v. State

In his motion for rehearing, appellant, through his counsel, vigorously combats the conclusion stated in the original opinion that the evidence is adequate to show that the death of the deceased was caused by injuries sustained in a collision with the appellant's car. Appellant denies that his car was driven upon the deceased and that he (appellant) was under the influence of intoxicating liquor at the time of the alleged collision. It is claimed by appellant that the evidence fails to show that at the time of the collision he was driving his car upon a public highway.

The witness Everett Earl Bonds testified to the effect that he and deceased, while traveling in a Ford coupe on the Gainesville and Muenster Highway No. 5, had a flat tire; that they both got out of their car to repair the tire; that Bonds was on the right-hand side of the car (which was parked on the south side of the highway and facing east), and while he was in the act of taking a lug wrench out of the car he noticed a car coming west; that before he could take the lug wrench from the car it was struck by the car coming west and he (Bonds) was knocked into the barrow pit; that the next thing he knew he was coming out of the ditch. He called to his companion, Willard Weatherman. Bonds discovered Weatherman under the appellant's car. He pulled him from under said car and noticed that Weatherman's head was crushed and he died a very few minutes thereafter. The radiator and lights of the appellant's car were broken and fenders badly bent. The fenders and lights of Bond's car were broken. The front axle was also broken from the body of the car. At the time that Bonds pulled the deceased from under appellant's car, the appellant walked up and said: "I am bleeding to death." He had a scalp wound on the back of his head. At the time of the collision the deceased was jacking up the car preparatory to repairing the flat tire.

The undertaker testified that the head of the deceased was crushed and that one leg and one arm were broken.

The fact that the deceased and his companion were returning from a party in an automobile at the time of the collision and that in the collision the deceased sustained injuries from which he died within a very few moments is deemed quite sufficient to sustain the verdict of the jury attributing the wounds and death of the deceased to the collision mentioned.

The evidence heard before the jury is set forth in the original opinion in sufficient detail as to render a repetition of it unnecessary in this opinion.

The court instructed the jury upon the law of circumstantial evidence. It is the contention of the appellant that the evidence presented no issue of fact justifying a conviction. In that particular the members of this court are constrained to conclude that the evidence is such as to require that the jury be instructed on the law of circumstantial evidence. This having been given under the circumstances detailed in the record, this court would not be justified in overruling the judgment of the trial judge touching the sufficiency of the evidence nor would it be justified under the law in superseding the decision of the jury on the subject in question. It must be remembered that the evidence being sufficient, though conflicting, it is not the office of either the trial judge or the appellate court to determine the truth thereof but that is the office of the jury. See Art. 706, C. C. P.

Our re-examination of the matter leaves us of the opinion that no error was committed upon the trial which would justify or require a reversal of the judgment.

The motion for rehearing is overruled.

Overruled.