Nichols v. State

Conviction for driving an automobile on a public highway while intoxicated; punishment, a fine of $50 and thirty days in the county jail.

Our attention is called to the fact that the verdict of the jury fixed the punishment at a fine of $50 and thirty days confinement in the county jail, but in passing sentence the trial court failed to take notice of the fact of the assessment of the fine mentioned. The sentence will be reformed so as to conform to the judgment, and direct the imprisonment of appellant in the county jail for the term fixed, and until the fine mentioned and costs are paid.

The indictment in this case contained two counts, one charging that appellant while intoxicated operated an automobile upon Colorado street, a street of an incorporated town, to-wit: Coleman, Texas; the other count charging that appellant while intoxicated operated an automobile upon a public highway in Coleman county, Texas. The court in his charge told the jury that if they believed from the evidence, beyond a reasonable doubt, that appellant while intoxicated operated an automobile upon Colorado street in the town of Coleman, and that same was then and there used and traveled by the public as a street and thoroughfare, they should find her guilty as charged in the second count. This was excepted to. In paragraph three of the court's charge, among other things, the court told the jury if they had a reasonable doubt as to whether Colorado street in Coleman, Texas, was a public highway at the time alleged, they should find appellant not guilty. Appellant's bill of exception No. 10 complains that a state witness, the county clerk of the county, was allowed to testify that he knew where Colorado street in Coleman, Texas, was, and that it was used by the public and open to traffic in 1930, and prior thereto and since. Bill of exception No. 11 complains that by appellant when a witness, the state was allowed to show, on cross-examination, that she knew where Colorado street was, and that it was a street and open to traffic. The testimony established that the driving of the car was upon Colorado street in Coleman, Texas, and this was a street then used by the public and open to traffic. Appellant also asked a special charge instructing the jury to acquit upon the ground that the state had failed to make out a case.

The question thus arises as to what is a public highway or road in the sense that term is used in article 802, P. C. The object of said statute is to protect the general public while using ways which are open to the public, — from dangers incident to the operation thereon of automobiles by those who have made themselves unfit for such operation by the use of intoxicating liquor.

In our opinion the words "public road or highway" in said statute were used to differentiate same from private roads. See section 6701, Revised Civil Statutes, 1925, quoted in our opinion in Wood v. State, 119 Tex.Crim. Rep., 45 S.W.2d 599, handed down January 27, 1932. We further believe that the allegations in the second count were sufficient; also that by oral testimony of persons reasonably familiar with such use, it may be shown that such street, road or highway is public, that is, one used or open for use and traffic by the public. Questions as to the time or manner of dedication, title to the soil, place of location, — as within a city, town or in the country, or questions of private rights and privileges, becomes ordinarily immaterial upon a trial when the indictment charges that the place of such violation, in a case like this, is upon a public road and highway, and when the testimony of witnesses be without contradiction that such road is open or used for traffic by the public generally. There must of necessity be legislative authority to enact laws to protect the people in their exercise of all public rights, and it would be intolerable to think that when investigating the criminal liability of the drunken driver of an automobile on a roadway, more or greater proof would be required to establish the character of the road, than that it was or is open for the use, or used by the public for traffic. Such being the allegation here, we think the charge of the court correct, and the testimony complained of admissible, and that no error was presented by the refusal of the special charge. See Elliott on Roads and Streets, vol. 1, chaps. 1, 2 and 5. Also sections 1-4, volume 13, R. C. L., and sections 208, et seq. of the same volume; Wood v. State, supra. We are not writing of a case, nor laying down rules applicable to a case, in which private rights or privileges may be involved from any angle, — but of a case in which one user of a road or highway breaks reasonable rules laid down by law for the safety of all other users of such road or highway.

We might add that it was shown that Colorado street referred to was a street of Coleman, Texas, judicially known to us to be the county seat of Coleman county, Texas, and also having a population of exceeding 6,000 people, as ascertained by the last Federal census. Under all the authorities every street in a city or town is a highway, though not every highway is a street.

We have examined each of the other bills of exception presented in the record and are of opinion that none of them present error.

The judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.