
    PENA v. STATE.
    No. 24494.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1949.
    Archer, San Miguel & Cadena, San Antonio, for appellant.
    George P. Blackburn, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant is charged by complaint with unlawfully operating “ * * * a motor vehicle, to-wit: an automobile upon a public highway . * * The case was tried to the court, without a jury, who assessed a fine of $50.

Only one witness, a policeman, testified in the case. In the evening, after dark, he received a call to go to the 300 block of South Flores Street, to the scene of an accident. When he arrived he found a truck had run into the rear end of another truck parked along the street. The driver of the truck was not there but returned in about ten minutes. Appellant told the witness his name and that he was from Lorenzo, Texas; that he had just bought the truck.

From his observation, the witness concluded that appellant was drunk. Appellant stated that he had drunk some seven or eight beers. The officer took him in his scout car and engaged him in conversation on the way to headquarters. The witness did not know when the accident had happened; he did not ask appellant where he had been/but inquired only about his drinking. This is all of the evidence in the case and we-think it is insufficient to support a conviction. Given its most strict construction, and assuming that he stated an offense had been committed, it is only the extrajudicial confession of the accused. This will not support conviction in the absence of proof of the corpus delicti. See Livingston v. State, 133 Tex.Cr.R. 437, 112 S.W.2d 190; Vasquez v. State, 145 Tex.Cr.R. 376, 167 S.W.2d 1030; and Robinson v. State, 148 Tex.Cr.R. 439, 188 S.W.2d 182.

The appellant has raised another question in his brief. He claims there is a variance between the evidence and the proof. In the absence of sufficient evidence to malee a case, it will not be necessary to discuss that issue.

For the failure of the eyidence to establish the corpus delicti, the judgment of the trial court is reversed and the cause is remanded.  