Opinion
No. 19190.
Delivered November 10, 1937.
1. — Intoxicated Driver — Record.
Upon appeal from conviction for unlawfully driving a motor vehicle upon a public highway while under the influence of intoxicating liquor, in the absence of evidence adduced upon the trial, Court of Criminal Appeals was not advised as to any previous conviction of the defendant for a similar offense, and was required to accept the record as presented for review, as respects application of the statute providing for automatic suspension of license for operating a motor vehicle for the period of six months upon a first conviction.
2. — Intoxicated Driver — Verdict — Judgment of Court.
Verdict of the jury and judgment of the court, prohibiting the defendant from driving a motor vehicle upon the highways for a period of one year upon his conviction for unlawfully driving a motor vehicle upon a public highway while under the influence of intoxicating liquor, held unauthorized, in the absence of any evidence of a prior conviction under statute which had been changed subsequent to the commission of the alleged offense, but prior to trial, by providing for automatic suspension of license for operating a motor vehicle while intoxicated for a period of six months upon the first conviction.
Appeal from the District Court of Walker County. Hon. M. C. Davis, Judge.
Appeal from conviction for unlawfully driving a motor vehicle upon a public highway while under the influence of intoxicating liquor; penalty, fine of $50.00.
Reversed and remanded.
The opinion states the case.
L. D. Johnston, of Waxahachie, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is the unlawful driving of a motor vehicle upon a public highway while under the influence of intoxicating liquor; penalty assessed at a fine of $50.00.
The verdict of the jury and the judgment of the court prohibit the appellant from driving a motor vehicle upon the highways of Texas for a period of one year. At the time of the commission of the offense on or about the 23rd day of November, 1935, Art. 802a, Vernon's Ann. P. C., was in effect, under the terms of which the appellant could be denied the privilege of driving a motor vehicle on the highways of the State for a period not exceeding two years. However, at the time of the presentment of the indictment and the trial of the case on January 21, 1937, Art. 802a, supra, had been repealed by Chapter 466, Acts of 44th Legislature, 2nd Called Session, 1935, which act became effective February 12, 1936. The law under which the appellant was convicted having been changed and the penalty reduced since the commission of the offense, the appellant was entitled to the amelioration of the punishment provided in the latter law. Such is the declaration of Article 13, P. C., 1925.
In the case of Harris v. State, No. 19070, not yet reported (page 129 of this volume), this court held that Art. 802a, supra (upon which the suspension of his right to operate a car is based), was repealed by Chapter 466, supra, which provided that the license of one who operates a motor vehicle upon the public highway while intoxicated shall be automatically suspended for a period of six months upon the first conviction. In the absence of evidence adduced upon the trial, this court is not advised as to any previous conviction of the appellant for an offense similar to the present prosecution, and must therefore accept the record as presented for review.
In view of the repeal of Art. 802a, supra, by the Act of the Legislature mentioned, we think the verdict of the jury depriving the appellant of the right to drive a motor vehicle upon the public highways of the State for a period of one year was unauthorized by law.
The judgment is reversed and the cause remanded.
Reversed and cause remanded.