In the indictment it is alleged that appellant, while intoxicated, drove an automobile "on a certain public highway, to-wit: the Dixie-Overland Highway." For the first time, appellant calls attention to the fact that the state failed to prove a driving on the highway as described. We have carefully examined the statement of facts. The highway is referred to therein as the "Dixie Highway," but no evidence is found to the effect that it was the "Dixie-Overland Highway." Unless we can assume that the "Dixie Highway" and the "Dixie-Overland Highway" are one and the same road, (and we know of no authority which authorizes this court to indulge in such presumption against one accused of crime), appellant's contention must be sustained. It was incumbent upon the state to prove the car was driven upon the Dixie-Overland Highway. Akin v. State, 23 S.W.2d 379; Smith v. State,298 S.W. 286; Cantu v. State, 276 S.W. 432; Chaves v. State,275 S.W. 1006; Lloyd v. State, 279 S.W. 843. The opinion is expressed that proof that the car was driven upon the "Dixie Highway" is not tantamount to proof that it was driven upon the "Dixie-Overland Highway."
Appellant's motion for rehearing is granted, the judgment of affirmance *Page 339 is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
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.
ON STATE'S MOTION FOR REHEARING.