
    SHEFFIELD v. STATE.
    (No. 9635.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1926.)
    1. Highways <&wkey;>l5l(2) — State had burden of showing that accused was liable for road service, to sustain conviction for failure to work on public road (Pen. Code 1925, art. 835 [Acts 37th Leg., 1st Called Sess. 1921, c. 42, § 37, being Vernon’s Ann. Pen. Code Supp. 1922, art. 832a]; Acts 37th Leg.,' 1st Called Sess. 1921, c. 42, § 19 [Vernon’s Ann. Civ. St. Supp. 1922, art. 6976'/2ii]).
    To sustain, conviction for failure to work on public roads under Pen. Code 1925, art. 835 (Acts 37th Reg., 1st Called Sess. 1921, c. 42, § 37 TVernon’s Ann. Pen. Code Supp. 1922, art. 832a], and Acts 37th Leg., 1st Called Sess. 1921, c. 42, § 19 [Vernon’s Ann. Civ. St. Supp. 1922, art. 6976]4ii]), state had burden of showing that accused was liable for road service.
    2. Highways <®=»I5I (2) — Information not alleging that defendant was liable under statute to work on public roads should have been quashed (Pent Code 1925, art. 835 [Acts 37th Leg., 1st Called Sess. 1921, o. 42, § 37, being Vernon’s Ann. Pen. Code Supp. 1922, art. 832a]; Acts 37th Leg., 1st Called Sess. 1921, c. 42, § 19 [Vernon’s Ann. Civ. St. Supp. 1922, art. 697614"]).
    Information in prosecution for failure to work on public roads should have been quashed, where it did not allege that defendant was liable, under Pen. Code 1925, art. 835 (Acts 37th Leg., 1st Called Sess. 1921, e. 42, § 37 [Vernon’s Ann. Pen. Code Supp. 1922, art. 832a], and Acts 37th Leg., 1st Called Sess. 1921, c. 42, § 19 [Vernon’s Ann. Civ. St. Supp. 1922, art. 6976y2ii]).
    Appeal from Tyler County Court; Hill C. Durham, Judge.
    Gordon Sheffield was convicted for failure to work on public road, and he appeals.
    Reversed, and prosecution ordered dismissed.
    F. M. Sheffield, of Beaumont, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is the failure to work upon the public road; punishment fixed at a fine of $1.

The sufficiency of the information is challenged upon the ground that it fails to contain an averment to the effect that the appellant was liable under the law to work upon the public road. In the statute, it is made a penal offense for “any person liable to work upon the public roads after being legally summoned shall fail or refuse, etc.” See article 835, P. C., 1925; Acts of 37th Leg., 1st Called Session, chap. 42, § 37 (Vernon’s Ann. Pen. Code Supp. 1922, art. 832a). In section 19 of the same act (Vernon’s Ann. Civ. St. Supp. 1922, art. 6976%ii), certain classes of persons are exempt from road service.

To sustain a conviction, the burden is upon the state to show that the accused came within the purview of the statute; that is/that he was liable for road service. The indictment, in failing to charge such liability, was defective. This was the holding of this court in Bennett v. State, 14 S. W. 336, 26 Tex. App. 671; Bluitt v. State, 121 S. W. 168, 56 Tex. Cr. R. 525; Willson’s Crim. Forms, No. 373.

The court was in error in refusing to quash the information.

The judgment is reversed, and the prosecution ordered dismissed.  