
    Lee McMullen v. The State.
    No. 18669.
    Delivered December 23, 1936.
    The opinion states the case.
    
      Martin & Shipman, of Abilene, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   CHRISTIAN, Judge.

The offense is driving an automobile on a public highway while intoxicated; the punishment, a fine of seventy-five dollars and confinement in jail for sixty days.

In the appeal bond it is stated that appellant has been convicted of the offense of driving an automobile while intoxicated. (Italics ours). In Herring v. State, 35 S. W. (2d) 737, we said:

“The recognizance is fatally defective. It is recited therein that appellant stands charged with driving an automobile while intoxicated, and that he has been convicted of the offense of driving an automobile while intoxicated. We have no statute forbidding one, in terms, from operating a motor vehicle while intoxicated. In order to come within the prohibition of the statute, the accused must drive or operate such motor vehicle upon a street or alley or other place within the limits of an incorporated city, town, or village, or upon a public road or highway within the State. Article 802, P. C.; Nicholson v. State, 110 Texas Crim. Rep., 112, 7 S. W. (2d) 1075; McFadden v. State, 108 Texas Crim. Rep., 166, 300 S. W., 54.”

The appeal is dismissed.

Appeal dismissed.

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.  