Opinion
No. 19271.
Delivered January 5, 1938.
Intoxicated Driver — Charge — Suspension of License.
In prosecution for driving an automobile on a public highway while intoxicated, charging the jury to add to their verdict the length of time defendant should be prohibited from driving any motor vehicle on the highways of the State not to exceed two years, and jury's verdict prohibited defendant from operating a motor vehicle on highway of State for a term of two years, held to constitute error, where it was defendant's first conviction, and under statute defendant's license to drive could only be suspended for period of six months, and conviction for first offense automatically suspended the license for such period.
Appeal from the District Court of McLennan County. Hon. D. W. Bartlett, Judge.
Appeal from conviction for driving an automobile on a public highway while intoxicated; penalty, confinement in penitentiary for eighteen months.
Reversed and remanded.
The opinion states the case.
Joe W. Taylor and J. D. Willis, both of Waco, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is driving an automobile on a public highway while intoxicated; the punishment, confinement in the penitentiary for eighteen months.
The jury were advised in the charge of the court to add to their verdict the length of time appellant should be prohibited from driving any motor vehicle upon the highways of this state, not to exceed two years. The verdict was in part as follows:
"We further find that the defendant shall be prohibited from operating a motor vehicle on the highways of this state for a term of 2 years."
Prior to the repeal of Art. 802a, Vernon's Ann. P. C., the jury would have been warranted in prohibiting the appellant from driving a motor vehicle on the highways of this state for a period not to exceed two years. However, when the offense was committed by appellant, and at the time of his trial, said Art. 802a was not in effect. The repealing act (sec. 16 of Chap. 466, Acts of the 44th Leg., 1935, Second Called Session), provided that a conviction for a violation of the provisions of Art. 802, P. C., as amended by Acts 1935, First Called Session, Chap. 424, denouncing the driving of a motor vehicle while under the influence of intoxicating liquor, should have the effect of automatically suspending the license of one so convicted for a period of six months for the first offense. In Harris v. State, 109 S.W.2d 201, it was held that the act of the Legislature mentioned repealed Art. 802a, supra.
As far as the record discloses the matter, this was appellant's first conviction under Art. 802, supra. Hence it would follow that his license could only be suspended or revoked for a period of six months. It might be added that the statute provides that the effect of such conviction is to automatically suspend the license. Hence no charge on the subject should have been submitted to the jury.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.