This is an original habeas corpus by which relator seeks release from confinement by virtue of a Capias Pro Fine issued from the County Court of De Witt County. The record discloses that relator was convicted in the Corporation Court of Yorktown and appealed his case to the County Court of De Witt County where he was again convicted, Capias Pro Fine issuing as a result. The ground of this application is that the complaint against relator is void in that admitting the truth of its allegations, no offense is set forth, *Page 575 and that consequently all other proceedings herein are also void. There being no appeal further than the said County Court, we have issued this writ.
The charging part of said complaint is as follows: "Did then and there unlawfully and willfully violate a traffic ordinance by failing to drive his automobile on right hand side around traffic pole in Main Street of city of Yorktown, Texas, contrary to the ordinance of said city of Yorktown." Attached to said application appears a copy of the traffic ordinances of said city.
Therein we find no ordinance penalizing the owner of an automobile who fails to drive same on the right hand side of the traffic pole on Main Street in said city. If we found such ordinance we should hold it void. The owner of a car can not be punished for his failure to operate it or his failure to drive it on any particular street, or failure to drive around any particular side of any traffic pole. In other words, this relator was not charged with driving or operating a car which he then and there drove on the wrong or left side of a given point but is simply charged with a failure to drive it on the right hand side. Every word charged in the complaint might be true of each member of this court or of relator if he left his car in his garage; or if he had never driven it on Main Street, for he would then "fail to drive it on the right hand side of the traffic pole on Main Street."
It is fundamental that the complaint must state facts which if true amount to a violation of the law. For the reason that the complaint in the instant case does not measure up to this fundamental requirement, it is void. The relief prayed for is granted and the sheriff of De Witt County is directed to release relator from the restraint of said capias pro fine. Relator discharged.
ON REHEARING. March 2, 1921.