Opinion
Jim C. Galloway, Ike R. Clinton, Memphis, for plaintiff in error.
George F. McCanless, Atty. Gen., Lyle Reid, Asst. Atty. Gen., Nashville, for the State.
BURNETT, Justice.
Counsel for Hardin have filed a very courteous, respectful and dignified petition to rehear. [1, 2] This petition in the first instance again complains that the court did not include or reduce his charge in writing on his instructions on the misdemeanor. We answered that in the original opinion, and in addition to the reasons we assigned in our original opinion and since the misdemeanor conviction was reversed certainly there cannot now be any complaint on this proposition.
The next complaint in this petition is with regard to the court's instructions in reference to the felony in which the conviction was affirmed. The original assignments, which were, we think, fully and correctly answered in our original opinion, made similar complaints and we see no reason to burden the matter further in reference to this question. The defendant now says that since driving while intoxicated in this case was an integral part of the crime of murder the failure on the part of the trial court to charge the jury in this respect was reversible error even though no special instructions were requested. We think the defendant overlooks the fact that the record before us is complete and contains the full and complete charge, which includes, of course, proper instructions in regard to driving while intoxicated, reckless driving, and the causal connection between the defendant's acts and the death. When the record, as it stands, shows no error the responsibility of showing that any charge given orally on a misdemeanor had any effect in the matter is on the plaintiff in error, and as the record stands we find no prejudicial error.
Many pages of this petition to rehear are taken up with the fact that the trial court failed to properly instruct the jury in regard to circumstantial evidence and quotes at length from Bishop v. State, 199 Tenn. 428, 287 S.W.2d 49, and other cases therein cited to support the proposition that certain excerpts taken from the charge in this case are erroneous compared to other cases cited in this petition to rehear. On page 647 of the record there appears a full and correct charge as to circumstantial evidence.
It is complained, too, in this petition to rehear that the trial court erred because it failed to charge the jury that in order to convict it must find that Hardin's acts caused the death, and that the court was required to charge the jury that it 'must find that the Defendant was driving his automobile while intoxicated and in such a manner as to endanger the lives of others.' This quotation is an incorrect statement of the law. Driving an automobile while under the influence of an intoxicant or in such a manner as to endanger the lives of others is conduct malum in se which supplies the necessary criminal intent and eliminates the necessity of showing that death was the natural and probable result of the criminal act. Edwards v. State, 202 Tenn. 393, 304 S.W.2d 500, and many cases cited therein. A full summary of previous cases on this question citing applicable rules will be found in Smith v. State, 196 Tenn. 168, 264 S.W.2d 803. The charge and the facts in the instant case clearly bring this case within the rules as set out in the Edwards and Smith cases cited supra.
It is next contended in this petition to rehear that this Court should have reversed the conviction herein on the basis of Culombe v. Conn., 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037, as cited by us and amplified as applying to the facts in the present case in our original opinion. In our original opinion we cited the Culombe case and attempted to show wherein the facts of that case as well as all others on the proposition passed on by the Supreme Court of the United States that were cited in that case were not applicable to the present case, because the confession or statements made in the present case were not obtained in violation of the Fourteenth Amendment to the United States Constitution, but were made freely and voluntarily.
After a thorough study of this petition to rehear we are satisfied that nothing new has been presented herein and that the petition must be denied.