
    Fabian C. Hernandez v. State.
    No. 25801.
    May 14, 1952.
    Hon. Wm. E. Nicholas, Judge Presiding.
    
      Rockey Harkey, Sinton, for appellant.
    
      George P. Blackburn, State’s Attorney, Austin, for the state.
   WOODLEY, Judge.

The conviction is for negligent homicide in the second degree; the punishment, 18 months in jail.

The complaint and information charge that on or about December 14, 1951, appellant was engaged in the unlawful act of driving an automobile upon a public street in the incorporated city of Sinton at a rate of speed in excess of 30 miles per hour, it being further alleged that while in the performance of such unlawful act appellant negligently caused the death of one Roy Castillo.

Prior to June 2, 1951, Art. 827(a), Sec. 8, Vernon’s Ann. P.C., contained a provision making it unlawful to drive a vehicle within the corporate limits of an incorporated city or town at a greater rate of speed than 30 miles per hour. However, Sec. 8 of said Article 827 (a) was re-enacted and amended by Acts of the 52nd Leg., Ch. 346, p. 589, which became effective June 2, 1951. The amended act contains no provision as to rate of speed within the corporate limits of a city, but instead provides, in Sec. 8, Subsection 1(b) 1, for a maximum speed of 30 miles per hour “in any business or residence district.”

There being no such misdemeanor offense as that which appellant was alleged to have been engaged in at the time of the homicide, the complaint and information will not sustain a conviction for negligent homicide in the second degree, nor support the punishment provided in Article 1242, P.C.

The judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the court.  