ON MOTION FOR REHEARING. In the motion for rehearing, the point stressed is that there was an absence of proof that the City of Waco was incorporated. Reference is made to Akin v. State, 23 S.W.2d 379, on the proposition that in this character of prosecution where the averment is that the offense was committed upon the streets of a city, there must be proof that the city was incorporated. In the present instance, the record shows that one of the witnesses testified as follows:
"I know where Franklin is located in the city of Waco. Franklin Avenue is within the corporate limits of the city of Waco. I know that."
This would seem to suffice as proof. However, it appears from the records in the office of the Secretary of State that Waco is an incorporated city; that it was incorporated under the enabling act to the Home Rule Amendment to the Constitution, which is Art 11, Sec. 5. In the enabling act of the Rev. Civ. Stat., 1925, Arts. 1173 and 1174, it is declared that courts shall take judicial knowledge of the terms of a charter of a city which is incorporated under the act mentioned. In fact, in Art. 1174, supra, it is said:
"When such charter or any amendment thereof shall be so recorded, it shall be deemed a public act and all courts shall take judicial notice of same and no proof shall be required of same."
The provision mentioned has been considered in Blackman v. State, 20 S.W.2d 783; City of Amarillo v. Tudor, et al.,267 S.W. 697. See also Dillon v. Whitley, 210 S.W. 329, in which the statutes mentioned are discussed and in which it is declared in substance that though the city charter does not accompany the statement of facts, the presumption will be indulged that the trial court was acquainted with its provisions. Touching the present record, however, it may be added that a certified copy of the charter of the City of Waco, with the various amendments thereof, is of record in the office of the Secretary of State.
Under the evidence, the fact that the appellant was drunk is not open to question.
The motion for rehearing is overruled.
Overruled.
HAWKINS, J., absent. *Page 314