Opinion
No. 25467.
November 14, 1951.
Appeal from the County Court at Law, Lubbock County, James G. Denton, J.
No attorney on appeal for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
The conviction is for driving a motor vehicle upon a public highway while intoxicated, the jury having assessed the punishment at 30 days in jail and a fine of $100.
The State's evidence shows that appellant, while driving an automobile on a public highway in the early morning, ran through a detour barricade where a railroad crossing was under construction.
Several witnesses testified that appellant was intoxicated and a bottle partly filled with whiskey was taken from his person.
Appellant did not testify and offered no evidence in his behalf.
Objections to the court's charge were directed to the opening paragraph thereof wherein the jury was informed of the nature of the charge, the defendant's plea and the presumption of innocence.
In support of such objection, this being a misdemeanor case, appellant requested a special charge to be given in lieu of paragraph 1. Appellant excepted to the overruling of his objection and to the refusal of his requested charge.
The requested charge is confined to an application of the law to the facts. The court's charge applied the law in paragraph 4 of his charge and not in paragraph 1. The requested charge was therefore on another and different subject, and the trial court correctly declined to substitute the requested charge for his paragraph 1. Had he done so, the charge would have twice instructed the jury on the application of the law to the facts, and would have omitted any reference to the nature of the charge, the defendant's plea or the presumption of innocence.
No error appearing, the judgment is affirmed.
Opinion approved by the Court.