
    F. L. Malone v. The State.
    No. 19561.
    Delivered April 20, 1938.
    Rehearing denied June 15, 1938.
    The opinion states the case.
    
      Rollie Faneher, of Seymour, 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 fifty dollars.

In the indictment it was alleged that appellant, while intoxicated, drove an automobile “upon a public and state highway, to-wit highway No. 30, in and through Bomarton, Baylor County, Texas.” We have carefully examined the statement of facts and fail to find any evidence in support of the averment thát appellant drove the automobile on Highway No. 30. It was incumbent upon the State to support the allegation that the car was operated on said Highway No. 30, as alleged in the indictment. Spencer v. State, 42 S. W. (2d) 259. The State’s Attorney before this Court confesses error.

The judgment is reversed and the cause remanded.

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.

ON MOTION FOR REHEARING.

Krueger, Judge.

The State contends that we erred in the original opinion in holding that it had failed to prove that appellant, while intoxicated, drove an automobile “upon a state highway, to-wit highway No. 30, in and through Bomarton, Baylor County, Texas,” as charged in the indictment.

We have again reviewed the statement of facts but find no testimony to that effect therein. Had it been shown that State Highway No. 30 was the only highway in and through said town, such might have been sufficient, but such proof is lacking.

The allegations in the indictment being descriptive of the offense had to be proved as charged. See Spencer v. State, supra, and authorities there cited.

Being of the opinion that the proper disposition was made of the case on original submission, the State’s motion for rehearing will be overruled.

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.  