Conviction is under article 802 of the Penal Code for driving an automobile on a public road while intoxicated; punishment assessed at a fine of $50 and ten days in jail.
The indictment described the road upon which appellant was alleged to be driving an automobile while intoxicated as the road that runs in *354and through Richards Park. Richards Park is a public place situated just west of the town of Brady. A public road leads from Brady toward the park; the road leading off from this highway runs into and through the park. This is the only road from the park to Brady.
At the time this offense was alleged to have been committed, July 4, 1929, a fair was in progress in the park. The evidence shows that there were some four to six thousand people in attendance. Appellant was seen driving an automobile on the public highway leading to the park and to drive from the highway on to the road through the park, when he was overtaken by the officers, who testified that he was in a staggery, drunken condition. Appellant denied, and introduced witnesses to corroborate him, that he was drunk or under the influence of intoxicating liquor at the time of his arrest or when he was driving the automobile.
Several contentions are made by appellant in regard to the road upon which he was alleged to have driven the automobile while in a state of intoxication, of which the principal objection is that it is not a public road within the contemplation of the law. Appellant’s contention is that there are only two methods of establishing a public road, either by the commissioner’s court establishing and laying out the same as a public road in the manner and mode provided by statute, or when not so established by the commissioner’s court, then it cannot become a public road unless it becomes so by prescription, that is, by being used by the public for at least a period of ten years and also being recognized by the county as a public road for a period of not less than ten years.
The road described in the indictment was. not proved to be a public road by being shown to have been established by the commissioner’s court of McCulloch county in the manner provided under the statute for the establishment of a public road. In this case, the state evidently was unable to show from the record that the road upon which the appellant was alleged to have driven the automobile had been established by any order of the commissioner’s court and was therefore forced to resort, in order to establish the character of the road being a public road, to other evidence.
It is well settled under the decisions of this court that a road may be shown to be a public road by other evidence than the production of the order of the commissioner’s court establishing it as such. The undisputed evidence offered by the state showed that between three and four years prior to the 4th day of July, 1929, Richards Park was donated as a fair ground and that this road was opened up through the park, and that since that time it had been open to and used by the general public as a public road, and that for the same length of time the county commissioner’s court, acting through the commissioner in whose precinct the road lay, had recognized it as one of the public roads of the county and had regularly worked the same as a public road for the county with county *355employees, teams, and machinery, and had been so doing for more than three years. This was sufficient evidence to establish it as a public road prima facie under the decisions of this court. See Michel v. State, 12 Texas App., 108; Berry v. State, 12 Texas App., 249; Race v. State, 43 Texas Crim. Rep., 438, 66 S. W., 560; Jolley v. State, 19 Texas App., 76; Dyerle v. State (Texas Crim. App.), 68 S. W., 174; Ward v. State, 42 Texas Crim. Rep., 435, 60 S. W., 757; Johnson v. State, 31 S. W. (2d) 1084.
Appellant cites several civil cases in support of his contention upon this issue, but we do not deem it necessary to analyze or discuss said cases because the decisions of this court uniformly sustain the state’s position that it was a public road under the undisputed facts proven. This disposes of appellant’s bills of exception 2 and 3. Following Johnson v. State, 116 Texas Crim. Rep., 185, 31 S. W. (2d) 1084.
Appellant, by bill of exception No. 1, complains of the overruling by the court of his motion to quash the indictment in this case. Said motion to quash, besides being addressed as a whole to the indictment, especially moved to quash the second count in the indictment because same charges the defendant with being in a moderate degree under the influence of intoxicating liquor and as being too indefiinite and uncertain. The defendant also moved to quash the third count in the indictment, because the same charges the defendant with being in a degree under the influence of intoxicating liquor, for the same reasons set out in his motion to quash the second count in the indictment. The issue submitted to the jury was under the first count in the indictment which charged that the appellant in the county of McCulloch, State of Texas, did then and there unlawfully operate and drive a motor vehicle upon a certain public road, that runs in and through Richards Park situated within said county and state, while the defendant was intoxicated by the immoderate use of spirituous, vinous, malt, and intoxicating liquor.
Submission to the jury by the court of only the first count in the indictment is tantamount to an election by the state. The failure to submit the second and third counts eliminates them from the case, and the failure of the court to quash the second and third counts and the sufficiency thereof, we deem it unnecessary to discuss. See Moore v. State, 37 Texas Crim. Rep., 552, 40 S. W., 287; Muller v. State, 69 Texas Crim. Rep., 159, 153 S. W., 1142; Rowlett v. State, 78 Texas Crim. Rep., 257, 180 S. W., 1078; Shipp v. State, 81 Texas Crim. Rep., 328, 196 S. W., 840.
By bill of exception No. 4, appellant complains of the argument of the district attorney, in his closing argument to the jury, to the effect that if the jury found the defendant guilty, the governor could restore his citizenship if he thought he was entitled to it. Said bill does not show as a matter of fact that the argument complained of was not in *356reply to that of appellant’s counsel, but said bill as qualified by the trial judge shows that the argument was invited by the argument of appellant’s counsel to the effect that they ought not to convict because defendant’s citizenship would thereby be lost. Said qualifications was accepted without protest and as qualified discloses no reversible error. Adams v. State, 113 Texas Crim. Rep., 501, 21 S. W. (2d) 1057; Poteet v. State, 112 Texas Crim. Rep., 466, 17 S. W. (2d) 46; Cochran v. State, 112 Texas Crim. Rep., 390, 16 S. W. (2d) 1065; Richardson v. State, 99 Texas Crim. Rep., 514, 270 S. W., 854; Rainey v. State, 104 Texas Crim. Rep., 371, 283 S. W., 816.
By bill of exception No. 5, appellant complains of the action of the trial court in refusing to set aside the verdict and judgment in this case and grant a new trial for the reasons set out in his bills of exception. No other grounds are set up in said motion for new trial except those contained in appellant’s bills of exception.
The evidence introduced by the state as to the accused being intoxicated, though controverted, is sufficient to support the verdict and the solution of that issue by the jury is binding upon this court.
The judgment is affirmed.
Affirmed.
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.