Brewer v. State

BEAUCHAMP, Judge.

The appellant was convicted of murder in the District Court of DeWitt County and his punishment assessed at five years in the penitentiary. The victim was a five months’ old baby.

The indictment contains two counts, the first being a charge of murder with malice by causing an automobile to collide with another car on the public highway, resulting in the death of the baby. The second count alleges murder by operating an automobile upon the public highway while intoxicated and through accident and mistake, while so driving the car, killing a child. The charge of the court submitted both counts to the jury and the verdict returned is a general one.

A large number of witnesses testified in the case, detailing observations of transactions with and conduct by the appellant and his companion throughout a large portion of the day, during which time both parties were shown to have been intoxicated. The car which they were driving belonged to the appellant. He had placed the same in the hands of Leo Spears, his companion, who drove the car at all times while the appellant sat by his side on the front seat. Both were credited with conversations and participation in incidents of the day.. They visited many way-side drinking and eating places, both in Yoakum and in Cuero. The only business which they transacted was that of leaving a check with one party for the payment of a debt owing to another. From all indications, the two men were engaging themselves voluntarily in association with each other for the purpose of “staging a drunk” in the appellant’s 1937 Ford V-8 on the highways and at such places as they may choose to go, which were many. At several stations they were so drunk upon their arrival, or before leaving, that the proprietors refused to sell them further drinks. They were admonished to keep off the highways and to retire to some place so that they could sober up. This they refused to do and boasted that they could stay on the highway drunk and not be disturbed. This boast they made g*ood until in the afternoon when the tragic event culminated in the death of an innocent baby and the' injury to others, wrecking two automobiles and sending himself and his companion to the hospital, still too drunk to realize fully what had taken place.

Further details of the facts may not be essential to a proper disposition of the case except as they are hereinafter stated in connection with the issues discussed.

Both parties were indicted and the appellant was separately tried. When his case was called, a vigorous motion for a continuance was made on the ground that his brother, a close companion, was very ill and the appellant desired to be with him and to look after him .It is further set out that because of his troubled mind over the illness of his brother, he would not be able to properly conduct his defense. It is not shown how long the brother had been ill and whether or not the appellant had had an opportunity, since the enactment of the tragedy, to converse with his lawyers and lay before them the facts of the case from his viewpoint. The motion does not raise a legal ground for a continuance but one which would under ordinary circumstances appeal to the sympathy of the trial court. It probably did so in this case, but the court, under all the facts and circumstances, overruled the motion for a continuance and placed the appellant on trial. It is not for this court to say that he abused his discretion in doing so.

The appellant did not testify on the trial of the case in his own behalf but produced a long list of witnesses, prominent citizens of the county in which he lives, who testified to his good reputation up to that time. Further than that the defense is technical, reliance being had on the contention that appellant was not driving the car, that he was too intoxicated to have authorized his companion to drive it; and that without knowledge of the presence of the deceased on the highway, and under the other admitted facts there could be no malice; and that the court, therefore, committed an error of law in his charge to the jury on murder with malice.

There are about thirty bills of exception found in the record but these will not be discussed separately. A consideration of the questions of law raised may be applied to the facts of the case by giving general consideration to them.

First, we will consider whether or not the appellant, under the circumstances of the case, may be held to be responsible for the acts of his companion in whose hands he had placed the automobile. The case of Schorr v. State, 132 S. W. (2d) 898, is relied upon. That case is an important one, but we do not believe it helpful to the appellant. Under Article 69 of the Penal Code, it is provided that a person who advises or agrees to the commission of an offense and who is present when the same is committed is a principal whether he aid or not in the illegal act. In the Schorr case, it was held that the appellant had not advised or agreed to the commission of the offense and that his presence when the offense was committed was not, under the facts of that case, sufficient to constitute him a principal offender. If the appellant has advised and agreed to all the acts and conduct of a companion whom he has placed in charge of his car and acts with him for hours, as in the instant case, in recklessly driving upon the streets and public highways in an intoxicated condition, where it may be known that the driver of the car is incapable of judicious control and the owner who places it in his hands continues with him and permits him to use it while in that condition, watches him make one reckless drive after another, as the record discloses in this case, crashing into other automobiles, a cattle-guard, into and across ditches, and repeatedly acts without judgment or discretion and without regard for the rights of others, it would seem that there would be no difficulty in concluding that he is responsible as a principal for whatever might result therefrom, provided it could have been reasonably anticipated as a result. This conclusion is not contrary to the Schorr case, supra, but is clearly indicated by the citation in that opinion of the case of Story v. United States, 57 App. D. C., 3, 16 Fed. (2d) 342, 344, 53 A. L. R. 246, in which it is said: “If the owner of a dangerous instrumentality like an automobile knowingly puts that instrumentality in the immediate control of a careless and reckless driver, sits by his side, and permits him without protest so recklessly and negligently to operate the car as to cause the death of another, he is as much responsible as the man at the wheel.”

We have held that an automobile is not a dangerous weapon per se, but when placed under the control of “alcohol at the wheel and gasoline in the tank” and driven upon the highway, the results are so uncertain that the owner agreeing thereto may be held responsible for the resulting death as though he himself had, with his own hands, guided the wheel. We think that the facts of the Story case justify us in applying the law as there laid down to the facts of the case at bar. The trial court properly held that the appellant was responsible as a matter of law under the facts before him.

The next question for our consideration is that raised by the objections to the court’s charge on murder with malice. In Cockrell v. State, 117 S. W. (2d) 1105, the drunken driver of a car recklessly and negligently ran into two small boys and killed them. He was given forty-five years. The question of malice was considered in an opinion by Judge Graves of this court, the opinion on motion for rehearing being by Judge Hawkins. It was there held that the facts of that case were sufficient to give the jury “some substantial ground upon which to base their belief that he was possessed of a heart regardless of social duty and fatally bent on mischief.” The opinion further applies the law of malice to the facts of that case in a very logical and forceful discussion of the authorities, and the reasoning there may well be adopted for this case. For a further consideration of the subject, see authorities discussed in the Cockrell case.

By Bills of Exception Nos. 3 to 12, inclusive, appellant complains of the admission in evidence of testimony showing' hw conduct and drunken condition at several places during the day preceding the collision resulting in the death for which he is charged. There is no denial in the record of his drunken condition, and we think that this testimony is pertinent and proper to show malice. By this is not meant a mature intent to take a human life but it shows a continuous conduct, dangerous to others, so recklessly and wantonly as to manifest a depravity of mind and disregard for human life, supplying the constituent elements embraced in an accepted definition of malice.

Bills of Exception Nos. 13 to 19, inclusive, complain of proof as to the extent of the injuries received by the occupants of the car in which the deceased child was riding. Pictures of both automobiles involved and testimony relating to the condition in which they were found as a result of the collision are in the record. All of this testimony reflects that the appellant and his companion were driving at an exceedingly high rate of speed. They approached the car from the rear, traveling in the same direction, and struck it with such force as to demolish the bodies of both cars. The mother of the child had it in her lap and was on the front seat with her husband who was driving the car. An eight-year-old girl was in the rear seat, looking backward and observing the approach of appellant. When the car struck, the doors of the car which was occupied by deceased burst open and the occupants on the front seat (the father, mother and the baby) were thrown to the right side .a distance of about eleven feet. The baby was described as going “into the air.” It fell on the pavement and its skull was crushed. This was Saturday evening and it died the following Monday about noon. The force with which the car was struck, as reflected by the demolishing of the cars and the injuries -to the occupants, is the most pertinent fact to determine whether the father of the deceased was reckless in driving on to. the main street and in front of the appellant or whether the appellant was driving with such speed and in such a reckless manner that he should be charged with the responsibility for the accident. The evidence on the subject is so overwhelming and so forceful as to leave no doubt that the jury was justified in reaching the conclusion that it did.

Complaint is made of the argument of the prosecuting attorney, the objection being that it was prejudicial and inflammatory. Compared to the detailed conduct of the appellant throughout the day, and his expressed disregard for law and order, the argument of counsel is mild, very mild. No juror, the father of a child, could listen to the facts of this case detailing the death of an infant knocked from the lap of its mother, the fruitless struggle of the dazed father to render aid and the cries of the little girl for her baby brother, the frantic appeal of the mother for her child in the presence of the appellant, who was uttering disconnected words and cursing his unknown victims, would be very much impressed or have his mind inflammed by the argument -of counsel, who said: “And they were going to see about having the baby baptized the next day — instead of that child being annointed with the consecrated water in the hands of a Minister of God, its innocent blood was crushed from its tiny brain by the hands of death guided by the wanton act of that man and his companion. That child had a right to live.”

The attorney merely detailed the facts of the case. The horror of this argument rested in the truthfulness of it. The jury’s verdict denies the existence of any inflammatory influence.

We And no error in the ruling of the court or in his charge.

The judgment of the trial court is affirmed.