Opinion
No. 19664.
Delivered April 27, 1938.
1. — Intoxicated Driver — Suspension of License — Statute.
Under the present statute, one convicted of unlawfully driving an automobile upon a public highway while intoxicated can only be prohibited from driving a motor vehicle upon the highways of the State for a period of six months upon a first conviction.
2. — Intoxicated Driver — Assumption — First Conviction.
On appeal from a conviction for unlawfully driving an automobile upon a public highway while intoxicated, it must be assumed, in absence of any evidence to the contrary, that the conviction is a first conviction of such offense.
3. — Intoxicated Driver — Verdict — Statute.
A verdict of the jury, in response to the court's charge, which deprived defendant of the privilege of driving a motor vehicle upon the public highways of the State for a period of one year for the first offense of unlawfully driving an automobile upon a public highway while intoxicated, held unauthorized under the present statute.
4. — Intoxicated Driver — Charge on Suspension of License.
Since the present law automatically suspends the license of one convicted of driving an automobile upon a public highway while intoxicated, it is unnecessary that a charge on the subject be submitted to the jury.
Appeal from the District Court of Falls County. Hon. Terry Dickens, Judge.
Appeal from conviction for driving an automobile on the public highway while intoxicated; penalty, confinement in penitentiary for one year.
Reversed and remanded.
The opinion states the case.
Cecil R. Glass, 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 one year.
In addition to assessing against the appellant the penalty stated above, the verdict of the jury, in response to the court's charge, deprives appellant of the privilege of driving a motor vehicle upon the public highways of the State for a period of one year. Such a verdict was authorized under Article 802a, P. C. However, said article has been repealed by Chapter 466, Acts of the 44th Legislature, 2d Called Session, 1935. Under the terms of Chapter 466, supra, the appellant can only be prohibited from driving a motor vehicle upon the highways of the State for a period of six months upon the first conviction. In the absence of evidence to the contrary, this Court must assume from the record that the present instance is the first conviction of the appellant of the offense in question. Therefore, his license can only be suspended or revoked for a period of six months. See Harris v. State, 109 S.W.2d 201; Chaney v. State, 112 S.W.2d 464; Schultz v. State, (No. 19583) not yet reported [page 251 of this volume]. Since the present law automatically suspends the license of those convicted under Chapter 466, supra, we think it unnecessary that a charge on the subject be submitted to the jury.
In view of the disposition made of the case, we pretermit a discussion of the bills of exception as the matters of which complaint is made are not likely to occur upon another trial.
For the reason stated, the judgment is reversed and the cause remanded.