
    TOOMBS v. STATE.
    (No. 12809.)
    Court of Criminal Appeals of Texas.
    Nov. 27, 1929.
    J. F. Cunningham and Oliver Cunningham, both of Abilene, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was convicted of the offense of driving a motor vehicle upon a public street in the town of Abilene while intoxicated by the immoderate use of spirituous, vinous, malt, and intoxicating liquors. His penalty was assessed at three days’ confinement in the county jail and a fine of $25.

Only one witness testified for the state. He testified that, while he was collecting insurance from a colored fellow, he observed appellant talking to a negro near by, and that if sounded like appellant was crying. He testified to a car accident; that appellant ran into him and then cursed him. He further testified: “From what I saw the defendant do there * * * in my best judgment, I think he was in some degree of intoxication; I think he was under the influence of liquor. I did smell his breath.”

The sufficiency of the evidence to sustain the conviction is vigorously contested. It will be observed that witness failed to testify that he smelled liquor on appellant’s breath. He failed to express an opinion that he was intoxicated. Appellant, who was a farmer residing west of Abilene, denied most of the testimony of state’s witness, and claimed to have been in the vicinity endeavoring to get cotton pickers. He admitted the car accident, but denied that he had drunk any liquor at all. He was corroborated in this by another witness. Testimony of more cogency than this was held insufficient in the case of Chairez v. State, 98 Tex. Cr. R. 433, 265 S. W. 905.

In our opinion, the state failed to prove beyond reasonable doubt the allegations of the indictment, and for this error the judgment is reversed and cause remanded.

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.  