The offense is driving an automobile on a public highway while intoxicated; the punishment, a fine of fifty dollars.
In the indictment it was alleged that appellant, while intoxicated, drove an automobile "upon a public and state highway, to-wit highway No. 30, in and through Bomarton, Baylor County, Texas." We have carefully examined the statement of facts and fail to find any evidence in support of the averment that appellant drove the automobile on Highway No. 30. It was incumbent upon the State to support the allegation that the car was operated on said Highway No. 30, as alleged in the indictment. Spencer v. State, 42 S.W.2d 259. The State's Attorney before this Court confesses error.
The judgment is reversed and the cause 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. *Page 170
ON MOTION FOR REHEARING.