Opinion
No. 19376.
Delivered February 9, 1938.
Intoxicated Driver — Charge — Revocation of License.
In prosecution for driving automobile on a public highway while intoxicated, instruction authorizing jury to determine length of time defendant should be prohibited from driving, not exceeding two years, held to call for reversal, where statute authorizing such action by jury had been repealed, before offense was committed, by statute providing for automatic suspension of license for six months for the first offense, and jury's verdict prohibited driving any motor vehicle for eight months, and, so far as record disclosed, this was defendant's first offense.
Appeal from District Court of Erath County. Hon. Sam M. Russell, Judge.
Appeal from conviction for driving an automobile on a public highway while intoxicated; penalty, fine of $250, and sixty-three days' confinement in the county jail.
Reversed and remanded.
The opinion states the case.
J. A. Johnson, of Stephenville, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The conviction is for driving an automobile on a public highway in this State while intoxicated; punishment, a fine of two hundred and fifty dollars, and sixty-three days confinement in the county jail.
The jury was instructed 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 reads in part as follows:
"And should be prohibited from driving any motor vehicle upon the highways of this State for eight months."
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 Legislature, 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. Therefore it would follow that his license could only be suspended or revoked for a period of six months. It will be observed the statute provides that the effect of such conviction is to automatically suspend the license; therefore no charge on the subject should have been submitted to the jury.
The judgment is reversed and the cause remanded.
Reversed and remanded.