Opinion
No. 19583.
Delivered March 30, 1938.
1. — Intoxicated Driver — Revocation of License.
Appellate court reviewing a conviction for unlawfully driving an automobile upon a public highway while intoxicated, must, in absence of evidence to the contrary, assume that conviction of the defendant of the offense charged is the first, and hence that his license could only be suspended or revoked for a period of six months.
2. — Intoxicated Driver — Verdict.
A verdict, in response to the charge of the court, which convicted defendant for the first time of unlawfully driving an automobile upon a public highway while intoxicated and prohibited defendant from driving an automobile upon the public highways of the State for a period of two years, held unauthorized, since under amended statute defendant's license could only be suspended or revoked for a period of six months.
3. — Intoxicated Driver — Charge — Revocation of License.
In prosecution for unlawfully driving an automobile upon a public highway while intoxicated, charge on subject of suspending license should not be submitted to the jury, since statute automatically suspends license of those convicted thereunder.
Appeal from the District Court of McCulloch County. Hon. E. J. Miller, Judge.
Appeal from conviction for unlawfully driving an automobile upon the public highway while under influence of intoxicating liquor; penalty, fine of $100 and confinement in the county jail for 90 days.
Reversed and remanded.
The opinion states the case.
Shropshire Sanders, of Brady, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The conviction is for unlawfully driving an automobile upon the public highway while under the influence of intoxicating liquor; penalty assessed at a fine of $100.00 and confinement in the county jail for ninety days.
The verdict of the jury, in response to the charge of the court, prohibits the appellant from driving an automobile upon the public highways of the State for a period of two years. Under Article 802a, P. C., such a verdict would have been authorized. However, at the time of the commission of the offense by the appellant Article 802a., supra, had been repealed by Chapter 466, Acts of 44th Legislature, 2d Called Session, 1935 (Vernon's Ann. Civ. St., Art. 6687a, Sec. 16). Under the terms of Chapter 466, supra, the appellant could be prohibited from driving a motor vehicle on the highways of Texas for a period of six months for the first conviction. In the absence of evidence to the contrary, this Court must assume from the record before it that the present instance is the first conviction of the appellant of the offense in question, and under the circumstances his license could only be suspended or revoked for a period of six months. See Harris v. State, 109 S.W.2d 201; Reeves v. State, 109 S.W.2d 1051; King v. State, 110 S.W.2d 1155; Alexander v. State, 110 S.W.2d 583; Short v. State, 111 S.W.2d 713; Morris v. State, 112 S.W.2d 193; Chaney v. State, 112 S.W.2d 464; Wilkerson v. State, 113 S.W.2d 535. In passing we will add that the present statute (Chapter 466, supra) automatically suspends the license of those convicted thereunder. Therefore, no charge on the subject should have been submitted to the jury.
The judgment is reversed and the cause remanded.