Opinion
No. 19245.
Delivered December 15, 1937. State's Rehearing Denied January 26, 1938.
1. — Intoxicated Driver — License Suspension — Statute Construed.
Statute in force at the time of defendant's conviction, providing that conviction for violation of statute making it an offense to drive a motor vehicle upon the public highways while intoxicated, shall automatically suspend license of one so convicted for a period of six months for first conviction, repealed prior statute providing that jury shall add to their verdict the length of time that defendant shall be prohibited from driving, not to exceed two years.
2. — Intoxicated Driver — First Conviction.
On appeal from conviction for driving a motor vehicle upon a public highway while intoxicated, Court of Criminal Appeals must assume that such conviction is the first conviction of defendant, in absence of evidence adduced upon the trial.
3. — Intoxicated Driver — Verdict — License Suspension.
That part of the verdict of the jury, convicting defendant for first time of driving automobile upon a public highway while intoxicated, which deprived defendant of the right to drive a motor vehicle upon the highways of Texas for a period of twelve months, held unauthorized, in view of the repeal of statute authorizing twelve months prohibition for first offense.
ON MOTION FOR REHEARING.4. — Intoxicated Driver — Reformation of Judgment.
On appeal from first conviction for driving automobile on a public highway while intoxicated, where the verdict of the jury improperly prohibited defendant from driving a motor vehicle upon highways of Texas for a period of twelve months, appellate court could not reform judgment to obviate the error, upon which reversal was predicated, since to accomplish the reformation appellate court would be compelled to disregard a part of the jury's verdict, and do something which the trial court would be without power to do.
Appeal from the District Court of Van Zandt County. Hon. G. O. Crisp, Judge.
Appeal from conviction for unlawfully driving an automobile upon a public highway while intoxicated; penalty, fine of $50.
Reversed and remanded.
The opinion states the case.
A. A. Dawson, of Canton, for appellant.
Lewis O. Osborn, Co. Atty., of Canton, and Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The conviction is for unlawfully driving an automobile upon the public highway while intoxicated; penalty assessed at a fine of fifty dollars.
The verdict of the jury prohibits the appellant from driving a motor vehicle upon the highways of Texas for a period of twelve months. Such verdict was authorized by Art. 802a of the Penal Code. However, that article was repealed by Chapter 466, Acts of 44th Legislature, 2nd Called Session, 1935. Under the terms of Chapter 466, supra, which was in force at the time of the appellant's conviction, he could only be prohibited from driving a motor vehicle on the highways of Texas for a period of six months for the first offense. In the absence of the evidence adduced upon the trial, this court must assume that the present instance is the first conviction of the appellant of the offense in question.
By reason of the repeal of Art. 802a, supra, by the Act of the Legislature mentioned, that part of the verdict of the jury depriving the appellant of the right to drive a motor vehicle upon the highways of Texas for a period of twelve months was unauthorized. See Harris v. State, 109 S.W.2d 201; Harris v. State, 109 S.W.2d 203; Reeves v. State, No. 19,190, not yet reported. (Page 248 of this volume).
The judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.
The State through the Honorable County Attorney of Van Zandt County files a motion for rehearing in which it is suggested that this court may reform the judgment to obviate the error upon which the reversal was predicated. To accomplish the reformation mentioned this court would be compelled to disregard a part of the jury's verdict, and we are aware of no authority which would support us in doing something which the trial court would be without power to do. See Pritchard v. State, 117 Tex.Crim. Rep., 35 S.W.2d 717; Williams v. State, 118 Tex.Crim. Rep., 42 S.W.2d 441; Ex parte Edwards, 125 Tex.Crim. Rep., 67 S.W.2d 308.
The motion for rehearing is overruled.
Overruled.