#### JENNINGS v. STATE.

No. 24530.

Court of Criminal Appeals of Texas.

Dec. 7, 1949.

Rehearing Denied Jan. 25, 1950.

W. H. Crunk, Greenville, L. D. Hartwell, Greenville, for appellant.

George P. Blackburn, State’s Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder without malice. The punishment assessed is confinement in the state penitentiary for a term of four years.

Appellant was indicted by the grand jury of Hunt County under Art. 802c, Vernon’s Ann.P.C., with the offense of operating a motor vehicle upon a public highway while intoxicated and while under the influence of intoxicating liquor; that while so driving and operating such motor vehicle he did through mistake and accident kill Mrs. W. H. Robison by driving said motor vehicle into and against, and causing it to collide with an automobile occupied *by*Mrs. W. H. Robison.

*127His first complaint is that the court erred in declining to give his special requested instruction to the jury to acquit him. With this contention we cannot agree since there is evidence to the effect that he drove a motor vehicle upon a public highway in Hunt County while intoxicated; that he did cause his motor vehicle to collide with an automobile occupied by Mrs. Robi-son; that in the collision Mrs. Robison did sustain severe injuries from the effects of which she died about one week later. His sole defense was that he was not intoxicated; that the causé of the collision was entirely due to the fact that the steering apparatus of his motor vehicle was out of order ; that when he drove at the rate of 25 or 30 miles per hour it would shimmy and run to the left side of the road; that it was hard to control.

His next complaint relates to the action of the trial court in permitting Cecil Owens to testify, in substance, as follows: Yes, Sir. I had a conversation with the Negro standing by the truck. I had been there about eight minutes before the ambulance arrived. I was standing about three feet from the Negro lying on the ground. The Negro I had a conversation with was standing on his feet. Yes, Sir, he made a statement there at the time. I said is he dead, meaning defendant, the Negro standing replied, No, he is not dead. I asked him how it happened and he said, Well, it just got to swaying on us, I tried to get him to let me drive, but he would not let me. It just swayed and got out of control. Appellant objected to this testimony and requested the court to withdraw it from the jury. He based his objection thereto on the ground that the statement purportedly made to the witness by the Negro standing within three, feet of appellant, who was lying down, was not admissible since it was not shown that he, appellant, was conscious and heard the statement and therefore he was not in the presence and hearing of appellant; that the statement was highly prejudicial and no part of the res gestae. The Negro who made the statement complained of was riding in the motor vehicle with appellant at and before the collision and his statement related to what occurred immediately preceding and at the time of the collision and was a part of the transaction and therefore a part of the res gestae and was admissible. See Jeffries v. State, *9*Tex.App. 598. Moreover, the bill is qualified by the court and as qualified fails to reflect any error.

He next complains because the court in his charge instructed the jury as follows: “You are charged that the defendant in this case, Harvey D. Jennings, cannot be convicted of the offense with which he is charged tinless you believe from the evidence beyond a reasonable doubt that the death of Mrs. W. H. Robison occurred as a result of the injuries sustained by her in the collision in question.” Appellant objected to this charge on the ground that it was incomplete and fails to inform the jury that if they believed from the evidence or had a reasonable doubt thereof that the death of Mrs. W. H. Robison occurred by or through some new or independent cause or causes, and not directly from the injuries sustained in the collision that the jury should acquit him. We will not here restate in detail all of the testimony relating to the injuries which she received, nor the opinion of one of the attending physicians who first treated her, since we deem it sufficient to briefly state the substance thereof. That she received severe head injuries is uncontradicted. Dr. Charles F. Shroeder testified that he treated her for the injuries when she arrived at the hospital in Greenville immediately after the collision. He testified as- follows: That Mrs. Robison sustained a .cut over the right eye three and one-half inches in length; that it went through the muscles overlying the skull; that it did not penetrate the skull but cut clear to the bone;. that this was a serious wound; that she had a wound over the bridge of her nose and her right hip showed an area of discoloration; that she complained of tenderness in that area. Those were the major injuries which he noticed at the time. Dr. Shroeder. further testified that the injury to her head may have caused a rupture of a blood vessel which caused blood to collect on the inside of her head causing pressure on the brain and nerves and this may have caused her death. That *128she was in good health just prior .to the time of the collision is uncontrovertcd. It occurs to us that the evidence raised an issue of fact as to whether or not she died as a result of the injuries which she sustained as a result of the collision or some other cause, and this issue of fact the jury-decided adversely to him. It is not necessary that the cause of deceased’s death be established by direct evidence. It may be proved by circumstances. See Tex.Jur., Vol. 22, page 726, Sec. 172; and Byler v. State, 106 Tex.Cr.R. 570, 294 S.W. 205.

By Bill of Exception No. 3 he complains of paragraph eight of the court’s charge which reads as follows: “You are charged that the defendant in this case, Harvey D. Jennings, cannot be convicted of the offense with which he is charged unless you believe from the evidence beyond a reasonable doubt that the death of Mrs. W. H. Robison occurred as a result of the injuries sustained by her in the collision in question.” His objection thereto was that it was incomplete and fails to inform the jury that the death of Mrs. Robison occurred by or through some new or independent cause or causes, and not directly from the injuries sustained in said collision, to acquit him. It 'will be noted that the court’s charge definitely and specifically required the jury to believe from the evidence beyond a reasonable doubt that her death was caused by the injuries which she received in the collision. The trial court qualified the bill by appending thereto the following qualification: “The evidence shows that Mrs. Robison’s forehead was split open and was bleeding awfully.” Mr. Robison testified, “My wife was carried to Dr. Becton’s hospital. She remained there from Sunday afternoon (August 8th, 1948) until 5:30 P.M. Monday afternoon. My wife showed evidence of pain subsequent to the accident. She complained of a pain in her chest and between her shoulders— constant pain, never did get it relieved. On Monday afternoon following the accident on the previous day, I took her home to Hugo, Oklahoma. She was confined in her bed * * *. We had Dr. E. A. Johnson and he made from one to two trips a day to 'see her from the tíme I got home until her death. My wife died on the following Monday, August 16th.” We see no need to further quote from the lengthy qualification of the bill by the court. We find no evidence in the record raising the issue of an intervening cause; and appellant, in his bill of exception, nor in his brief, does not direct our attention to any evidence which would call for an instruction on the question of an intervening cause. We therefore overrule his contention.

What we have said in disposing of Bill of Exceptions No. 3 applies to his bills Nos. 4 and 5.

Appellant’s next complaint relates to paragraph No. 4 of the court’s charge which reads as follows: “You are further instructed that before the defendant, Harvey D. Jennings, can be convicted of the offense with which he is charged, you must believe from the evidence beyond a reasonable doubt that the collision involved in this case was caused by reason of the defendant, Harvey D. Jennings, then and there being intoxicated or under the influence of intoxicating liquor.” His objection ,j this charge was that the court failed to instruct the jury that although they believed from the evidence that defendant was intoxicated, he would not be guilty of the offense charged if the jury finds and believes from the evidence, or have a reasonable doubt thereof, that the defendant was then and there operating his said truck in a manner that same would be operated by a person not so intoxicated. We note that the court, in paragraph five of his charge, which immediately followed paragraph four, instructed the jury: “If the evidence introduced before you during the trial of this case raises a reasonable doubt in your minds as to whether the collision in question was caused on account of the defective condition of the mechanism of the motor vehicle referred to by the witnesses you will resolve such doubt in favor of the defendant and acquit him.” It appears to us that the foregoing charge by the court, to which no objection was urged, is sufficient on the subject as to whether or not the collision was caused by the defective mechanism.

*129All other matters not specifically discussed have been examined, and are overruled.

No error appearing from the record, the judgment of the trial court is affirmed. ,.

Opinion approved by the Court.

On Motion for Rehearing

GRAVES, Judge.

Appellant again complains because of the failure to give in the charge to the jury a satisfactory instruction relative to death from a supervening cause. There is no testimony relating to what was such supervening cause, when it arose, or what caused the same. The testimony does show that Mrs. Robison was a healthy woman in possession of all her faculties; that “the condition of her health was good prior to the time of the accident and she was able to be up and take care of the house and the household duties. Subsequent to the time of the accident she was not able to be up and take care of the house and the household duties. She died in Hugo, Oklahoma, August 16th, which was eight days after the accident. * * * Yes, my wife showed evidence of pain subsequent to the accident. She complained of pain in her chest and between her shoulders — constant pain— never did get it relieved. * * *■ She continued to show evidence of pain ’ and suffering from the time of the collision until the date of her death; she was in pain continuously.”

The physician who attended her immediately after the collision was not in such attendance at the time of her death, and at the time she was taken from the Greenville hospital. He did not know the full extent of her injuries, but testified that it was entirely possible that' the serious injury which he found upon her head could have ruptured certain blood vessels in or about the brain structure, which could have caused death. There was no supervening cause shown, but we do find that the trial court charged the jury that they could not convict the defendant in this case unless they believed from the evidence beyond a reasonable doubt that the death of Mrs'. W. H. Robison occurred as a result of the injuries sustained by her in the collision in question. Again, he charged the jury that if they believed or had a reasonable doubt that the death of Mrs. W. H. Robison did not occur as the result of injuries sustained by her 'in the collision in question 'to acquit the appellant. See Art. 1202, Vernon’s Ann.Tex.P.C., Vol. 2, arid authorities cited thereunder.

The physician attending the injured lady, after having been informed of the treatment accorded her after she left his care, stated that it was entirely possible that she died from the serious injury suffered in this accident. We also think the testimony of W. H. Robison, the husband, was sufficient to show that the death was caused by such injuries suffered in the collision..

We think appellant has been the recipient of all the rights guaranteed him. under the law, and that the charge of the trial court gave a correct instruction under the facts herein presented.

The motion for rehearing will be overruled.