
    HUDNALL v. STATE.
    (No. 11373.)
    Court of Criminal Appeals of Texas.
    Feb. 22, 1928.
    1. Obscenity &wkey;>12— Information for printing on automobile picture of rooster, followed by word “wagon,” held insufficient to charge publishing of indecent picture (Pen. Code 1925, art. 526).
    Information for publishing indecent picture, alleging defendant operated automobile with picture, on each side, of rooster, followed by word “wagon,” conveying impression that vehicle was cock wagon, held insufficient under Pen. Code 1925, art 526, for absence of innuendo averment to make obscene meaning plain, since “cock” is not deemed to have obscene meaning, in absence of explanatory averment.
    2. Criminal law <5&wkey;304(4)— Court does not judicially know that picture of rooster, followed by word “wagon” on automobile, has vulgar meaning.
    Court does not judicially know that picture of rooster, followed by word “wagon,” printed on side of automobile, alleged to convey impression that vehicle was cock wagon, had vulgar meaning; work “cock” not being deemed to have obscene meaning in absence of explanatory averment.
    Commissioners’ Decision.
    Appeal from Wichita County Court at Law; C. M. McFarland, Judge.
    Mart. Hudnall was convicted of making, publishing, and printing an indecent picture, and he appeals.
    Judgment reversed, and prosecution ordered dismissed.
    W. E. Beall, of Burkburnett, and Heyser & Hicks, of Wichita Falls, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

An information was filed against appellant alleging the unlawful making, publishing, and printing of an indecent picture, the part of which under attack is as follows:

“The said Mart Hudnall did then and there drive and operate a motor vehicle along the public streets of the city of Burkburnett, Tex., in view of people on said street, on each side of which vehicle were printed and drawn a picture of a rooster, with the word ‘wagon’ written to the right of said picture, conveying the information and impression that said motor vehicle was a cock wagon.”

It is claimed that this information is insufficient, under article 526 of the Penal Code 1925, to charge an offense.

The evidence shows that on the back of the car was written “Chase me, chickens, front full of corn.” The appellant was a boy, and he testified that another put the pictures on the car, and that it was done in sport.

The indictment contains no innuendo averment setting out wherein the picture or language was indecent and obscene. The word' “cock,” according to modern lexicographers, has many meanings, but none of them seem to be indecent or obscene. One of these definitions, according to Webster’s International Dictionary, is: “The male of birds.” Without some explanatory averment, we do not think the information is sufficient. Abendroth v. State, 34 Tex. Cr. R. 325, 30 S. W. 787; Edwards v. State, 47 Tex. Cr. R. 611, 85 S. W. 797. If in common parlance the picture and language had a vulgar meaning, the same should have been set out. We do not feel authorized to say that this court, without any innuendo averment which makes its obscene and indecent meaning plain, can judicially know that it would be interpreted by youth as claimed by the state.

Believing that the information is insufficient, the judgment is reversed, and the prosecution ordered dismissed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  