Opinion
No. 24058.
May 26, 1948. Rehearing Denied June 23, 1948.
1. — Evidence — Sufficient — Support Conviction.
The evidence made a case sufficient to support jury's conclusion of guilt.
2. — Charge — Driving While Intoxicated — Affirmative Defense.
There being no testimony that appellant, convicted of driving his car on a public highway while intoxicated, was suffering a nervous attack at the time, the court was not required to charge thereon as an affirmative defense.
3. — Charge — Objections and Exceptions — Not Approved.
Objections and exceptions to the court's charge, not approved by trial court are not subject to be considered.
Intoxicated driver. Appeal from County Court of Tom Green County; penalty, confinement in jail for ten days.
Hon. I. J. Curtsinger, Judge Presiding.
Affirmed.
Wm. E. Davenport, of San Angelo, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
This is a conviction for driving while intoxicated; the punishment, a fine of $50.00 and confinement in jail for ten days.
Three members of the highway patrol, attracted by the manner in which appellant was driving his car on the public highway — that is, from one side of the highway to another, stopped him. They testified that they could smell intoxicating liquor on his breath and that he was under the influence thereof.
This testimony made a case for the State and was sufficient to support the jury's conclusion of guilt.
Appellant did not testify as a witness in his own behalf. He offered a witness who testified that he was not a well man; that he had to take tablets to "keep his nerves down."
There was no testimony suggesting that appellant was suffering a nervous attack at the time of his arrest. Therefore, the trial court did not err in failing to charge thereon as an affirmative defense.
The exceptions and objections to the court's charge, not having been approved by the trial court, are not subject to be considered.
The judgment is affirmed.
Opinion approved by the Court.
ON MOTION FOR REHEARING.
Appellant contends that the judgment of the court predicated upon the verdict of guilt of the jury is insufficient because judgment does not contain a provision therein prohibiting appellant from driving an automobile for a period of six months from the date of the conviction. Such was not necessary. Appellant's driver's license is automatically suspended by law upon such conviction, it being a matter which is beyond the control of both the trial court and the jury. Therefore, it is not necessary for the judgment to provide for such suspension. See Beach v. State, 199 S.W.2d 1020; also Vernon's Ann. Civ. Stat., Vol. 19, Art. 6687b, Article IV, sec. 24.
The motion will be overruled.