The original statement of facts in the foregoing cause has been forwarded to this court and it appears that same was properly filed with the county clerk within the time allowed by law. Apparently the attorney for appellant had a misconception of how the statement of facts should come to this court and, upon his instruction, the county clerk included the same in the transcript. It should have been forwarded by the clerk as a separate instrument. The logic for this rule is probably understood by the legislature which passed the law. *Page 179
A jury was selected in the trial of the case. After some procedure had been taken, the case was withdrawn from the jury by agreement and submitted to the court, who found appellant guilty and assessed the fine stated in the original opinion.
Since we are privileged to consider the bills of exception, it is noted that the court has signed a bill of exception specifically certifying that: "The Court erred in finding the Defendant guilty because the evidence is insufficient to convict the Defendant, as charged.
We have examined the statement of facts as it now appears in the record and the only evidence offered by the state to show that the appellant was the driver of the car in question was that of two officers who testified that one of the state's witnesses told them, at the time of the accident, that the defendant was the driver. This same witness, testifying on the stand in behalf of the state, gave a different version. He denied making the statement to the officers and said that the defendant was in the back seat at all times. The evidence of the two officers could have no probative force other than to impeach the witness. The state still had the burden of proof to show that appellant was the driver of the car.
Appellant's motion for rehearing is granted and the judgment of the trial court is now reversed and the cause is remanded.