Opinion
No. 19665.
Delivered April 27, 1938.
1. — Intoxicated Driver — Suspension of License.
Court of Criminal Appeals in reviewing conviction for unlawfully driving an automobile upon a public highway while intoxicated must assume that the conviction is the first conviction of the offense charged, and hence defendant's license could only be suspended or revoked for a period of six months, in the absence of any evidence to the contrary.
2. — Intoxicated Driver — Verdict — Statute.
A verdict of the jury, in response to the charge of the court, which convicted defendant for the first time of driving an automobile on a public highway while intoxicated and prohibited defendant from driving an automobile upon the public highways for a period of two years, held unauthorized, since, under present statute, defendant's license could only be suspended or revoked for a period of six months upon a first conviction.
Appeal from the District Court of Falls County. Hon. Terry Dickens, Judge.
Appeal from conviction for unlawfully driving an automobile upon a public highway while intoxicated; penalty, confinement in penitentiary for 12 months.
Reversed and remanded.
The opinion states the case.
Bartlett Bartlett, and W. E. Rogers, all of Marlin, 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 intoxicated; penalty assessed at confinement in the penitentiary for twelve months.
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 Texas for a period of two years. Such a verdict was formerly authorized by Article 802a, P. C., but under the present statute (Chap. 466, Acts of the 44th Legislature, 2d Called Session) the appellant is automatically prohibited from driving a motor vehicle upon the highways of Texas for a period of six months upon the first conviction. The record is silent as to any previous convictions of the appellant for the offense in question. This Court must therefore assume that the present instance is the first conviction of the offense charged. Under the circumstances, his license can only be suspended or revoked for a period of six months. See Harris v. State, 109 S.W.2d 203, and cases cited in Schultz v. State, (No. 19583) not yet reported. [Page 251 of this volume.]
Complaint is made in several bills of exception of various matters, including the arguments of counsel for the State. However, in view of the disposition made of the case, we pretermit a discussion of those matters as they are not likely to occur upon another trial.
The judgment is reversed and the cause remanded.