
    McMULLEN v. STATE.
    No. 18669.
    Court of Criminal Appeals of Texas.
    Dec. 23, 1936.
    Martin & Shipman, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is driving an automobile on a public highway while intoxicated; the punishment, a fine of $75 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, 117 Tex.Cr.R. 211, 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 Tex.Cr.R. 112, 7 S.W.(2d) 1075; McFadden v. State, 108 Tex.Cr.R. 166, 300 S.W. 54.”

The appeal is 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.  