
    M. K. Kennedy v. State
    No. 33,129.
    March 15, 1961
    Motion for Rehearing Overruled April 19, 1961
    WOODLEY, Presiding Judge, absent.
    
      
      Keith, Mehaffy, McNicholas & Weber (Quentin Keith of Counsel) Beaumont, for appellant.
    
      Ramie Griffin, Criminal District Attorney, Jim Vollers, Assistant District Attorney, Anthony G. Brocato, Assistant City Attorney, Beaumont, and Leon Douglas, State’s Attorney, Austin, for the state.
   MORRISON, Judge

This is an appeal from a prosecution under a complaint charging a violation of a city ordinance of the City of Beaumont which prohibits the blowing of a railroad whistle except where there is imminent danger of an accident; the punishment assessed in the County Court at Law on appeal was a fine in the sum of $125.00.

Under such a complaint, it became incumbent upon the prosecution to prove:

(1) That appellant blew the whistle, and

(2) That there was no imminent danger of an accident at the time.

The proof showed that the whistle was blown as the railway engine, which appellant was operating, approached Calder Avenue, the second most heavily traveled street in the city. The state produced no witnesses at the scene. Appellant, testifying in his own behalf, said that he saw no automobiles approaching but qualified that statement by saying that his vision in one direction was obscured by a building situated on the corner.

From this it is apparent that the state failed to prove the allegation in the complaint that there was no imminent danger of an accident. .

Finding the evidence insufficient to support the conviction, the judgment is reversed and the cause remanded.  