Grover Sellers




     Hon. L. D. Eakman       Opinion No. O-7044
     County Attorney         Re: Construction   of Art. 802c, Penal
     Montague County         Code, as affected  by holding in case
     Montague, Texas         of Smith vs. State, 179 S.W.(2) 965.
     Dear Sir:
                 We have received   your recent   request   for   an opinion
     on the following   matter:.,
                  "Under Art. 802c.any person while driving
           or operating an automobile or ,other vehicle while
           int ;oxicate,d shall through accident or misteke do
           another act which if voluntarily     done would be a
           felony     shall receive the punishment affixed  to
           the felony actually ,committed.
                 "Under the present law driving an automobile
           or other vehicle while intoxicated     is a misdemeanor,
           and will appreciate   ytiur opinion' as to the law as
           it applies to the ,following    case.
                 "On the 19th of last month two persons were
          killed   in a wreck in this county.    Ins one of the
          cars was a man and his family and his wife and one
          child was killed.    In the other car was one man who
          was drunk.    I will appreciate   your opinion whether
          or not this man who was drunk should be indicted
          under Art. 802~ of the Penal Code or should he be
          indicted for negligent    homicide.
                "As I understand the case of Smith vs State,
          179 S.W.(2d)  965, a person has to be convicted   the
          second time of driving while intoxicated   before he
          can be convicted of a felony under Art. 802~ of the
          Penal Code."
                The driving of an automobile upon a public highway
     by a person while intoxicated  is a misdemeanor under Article
     802, Penal Code, but becomes a felony under Article 802b, Penal
     Code, when such person has theretofore  been convicted of such
     offense.
Hon. L. D. Eakman, page 2


            Article 802c, Penal Code, provides that a person
while so driving an automobile upon a public highway while
intoxicated   who shall through accident or mistake do another
act which if voluntarily    done would be a felony, shall re-
ceive the punishment affixed to the felony actually    committed.
          Article   42, P.C., provides that one intending to
commit a felony and who in the act of preparing for or execut-
ing the same shall through mistake or accident do another act
which, if voluntarily   done, would be a felony,  shall receive
the punishment affixed   to the felony actually  committed.
           Article    1256, P.C., provides that whoever shall vol-
untarily kill any person within this State shall be guilty of
murder, and murder shall be distinguished     from every other
species of homicide by the absence of circumstances which re-
duce the offense to negligent     homicide or which excuse or
justify  the killing.
            Articles   1230-1243, P.C.; treat of the offense of
homicide by negligence.        Art. 1241, P.C., provides that when
one in the execution of or in attempting to execute an act
made a felony by law shall kill another, though without an
apparent intention     to kill,    the offense does not come within
the definition     of negligent    homicide.
           Said Art. 802, P.C., before its amendment in 1941
was a felony statute,   that is, any violation  of its provisions
was a felony.    Since said amendment the first   offense committed
thereunder by a person is a misdemeanor and every subsequent
violation  thereof becomes a felony as to such person.       Art.
802c, amending said Art. 802, obviously was enacted to apply
the rule announced in Art. 42, supra, which applies to felonies
generally,   to the one specific misdemeanor offense,    “drunk
driving,”  as denounced by Art. 802.    If the offense denounced
by Art. 802 had remained a felony in all instances       there would
have been no occasion for the enactment of ,Art. 803c, because
,Art. 42 would be applicable.
            In the case of Smith v. State    (Crim.App.)   179 S.W.
(2)   965, mentioned by you, the following    was said:
Hon. L. D. Eakman, page 3


             “The driving of an automobile upon a public
     highway by ,a person awhile int,oxicated      ins a misde-
     meanor under Art. 802, P-C., but becomes a felony
     under Article     802b, P.C., when such person has
     theretofore    been convicted of such offense.         Con-
     sequently,    in the absence of being charged with
     having theretofore      been c~onvicted of driving an
     automobile upon a public highway while intoxicated,
     he would not be guilty of a fe,lony.         Therefore,   to
     bring the act of the appellant in the present case
     within the purview of Art. 802c, P.C., his act of
     intentionally     driving an automobile, while intoxi-
     cated, through a barbed-wire fence must constitute
     a felony under the law.        If it does not, he cannot
     be convicted of murder under the undisputed facts
     of this case.      Therefore,    unless he knew that the
     deceased was on the fender of the car and did,
     with a reckless     disregard,of    the lives ~of others,
     drive the car through the fence, knowing that death
     would be the natural and probable consequences of
     his act, he would not be guilty of murder. ***
     Therefore,    unless appellant knew that the deceased
     was on the rear fender of the car or had any rea-
     son to believe that he or some other person was in
     it    there could not have been an apparent danger of
     killing    anyone.
           1’***

            ‘I *** Had the appellant in the present case
     known that the deceased was on the rear, ,fender of
     the car and with full knowl,edge .thereof he had de-
     liberately     driven through the barbed-wire fence, an
     entirely    different   question would be presented.    Efad
       ooellant.    while under the inflwe     of intoxi catinq
     LXI   or. driven the car UD n said hishwav and. bv ac-
     cident or mistake. struck’the      dece s d. whether he
     saw him or not but where he shouldahtve expected
     peoole to be. he would no doubt be aui Y under Art.
     802~~ P.C.”       (Underscored for emphasistt
           It is our opinion from a careful study of the ruling
in the Smith case, that such case turned on the point of lack
of knowledge of the defendant Smith that the death of someone
would be the natural and probable consequence of his acts.    We
believe the portion of said opinion next hereinabove under-
scored for emphasis, adequately states the proper application
of Art. 802~ on a state of facts analogous to those stated in
Hon. L. D. Eakman, page 4


your request.    We do not believe it the purport of the opinion
in the Smith case, supra, that a prior conviction   of driving
while intoxicated   an automobile upon a public highway must be
shown before a conviction   may be had under said Article  802c,
on a state of facts such as those submitted by you.
          Therefore, it seems to us that you have the following
offenses to consider in forming the proper criminal charge
against the accused in question:
           If the proof shows that the accused, whether intoxi-
cated or not, while driving an automobile upon a public high-
way, struck and collided   with another automobile thereby caus-
ing the death of a person or persons in such other automobile,
said accused then and there driving said automobile in such a
reckless  and dangerous manner as to evidence a disregard of
the lives of others so as to imply malice, such evidence will
sustain a conviction   of murder with malice under the general
homicide law.   See Cockrell vs. State, 117 S.W. (2) 1105.

           If such proof fails  to show such reckless   disregard
of the lives of others as to constitute    urnrder with malice,
but does show that such act was done by accident or mistake
as a result of the intoxication   of accused, while accused was
driving an automobile on a public highway such evidence will
sustain a conviction   of murder without ma&ice under ,Art. 802c,
P.C.
          If said accused was not in the execution of or at-
tempting to execute an act made a felony by law when he per-
formed the act in question,   he may be convicted of negligent
homicide.   In this connection we point out that the count in
the indic tment charging murder will support a conviction     for
negligent homicide   if proper instructions   are given.  See
Guerra v. State, 288 S.W. 1084.
           A safe practice  in drawing an indictment in any case
is, if there is any doubt as to which of several charges the
proof will substantiate,   that as many of such charges as are
applicable  and necessary be placed in the indictment,   each In
a separate count’,, in order that the one properly fitting   the
proof may be chosen by the court or the jury.     It is our sug-
gestion in the case in question that two counts be placed in
the indictment,   one for murder with malice as in the Cockrell
               and one under said Art. 802c, as in Fox V. State,
g%~:“T~r       733.
Hon. L. D. Eakman, page 5


          It is to be understood that we are merely applying
the law generally  to a general state of facts,  and in no event
is it to be construed that we are attempting to direct the
course of the prosecutivn   herein, as that is the duty of the
proper authorities  who are in position  to know what facts will
be adduced on the trial   of the case.
             In support hereof we are herewith enclosing a copy
of our Opinion No. O-3845 which gives the text of niost of the
statutes in question,    together with quotations from pertinent
authorities.
                                  Yours very truly
                                  ATTORMEY
                                         GENERAL
                                               OF TEXAS
                                  By /s/ Robert L. Lattimore,      Jr.
                                  Robert L. Lattimore,  Jr.
                                  Assistant
APPROVED
       JAR 29, 1946
/s/ Ocie Speer
(Acting) ATTORNEY
                GENERAL
                      OF TEXAS
APPROVED:OPINIONCOMMITTEE
BY:     BWB, CHAIRMAN
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