This case originated in the Justice Court of Kleberg County, where the appellant was convicted under the complaint hereinafter set out and given a fine of five dollars. On appeal to the County Court, a fine of $110.00 was assessed, from which this appeal is taken.
A number of questions are raised in the case, but we find it necessary to consider only one.
The following is a copy of the complaint so far as it is essential to a decision of this case. The affidavit alleges that: “Leo W. Fortson * * * did then and there unlawfully operate *342a commercial motor vehicle, to-wit: a truck & semi-trailer, upon a public highway of the State of Texas, to-wit: State Highway No. 16, outside the city limits of an incorporated city or town, in the County of Kleberg, Precinct number 1, State of Texas, with a net load weight on said vehicle, said load thereon weighing in excess of seven thousand pounds; and said vehicle and load thereon not coming within any of the exemptions to the seven thousand pound limit laws as provided by the laws of the State of Texas.”
The prosecution is under the provisions of Art. 827a, Penal Code. It will be observed that one of the essential allegations in this complaint is that the vehicle and load do not come within one of the exemptions to the 7,000 pound limit laws. For the period, of time involved, the appellant drove from Premont, Jim Wells County, to Kingsville in Kleberg County, Texas. He was arrested outside of the city limits of Kingsville. There is nothing- in the stipulation of facts to show what road the appellant traveled or that he passed any shipping point as designated in the exemptions. Neither is there any other evidence attempting to show that he did not come within one of the exceptions set out in Art. 827a, sec. 5, of the Penal Code of Texas. It was incumbent upon the State to allege and prove these facts. Having failed to do so, the conviction cannot stand. Kitchens v. State, 109 S. W. (2d) 1071.
The case is reversed and remanded.