The conviction is for the offense of driving a motor vehicle upon a public highway while intoxicated. The punishment assessed is confinement in the county jail for a period of sixty days.
Appellant claims that the trial court committed two errors. The first relates to the court’s action in overruling his application for a continuance or postponement of the case based on the absence of two witnesses whose testimony, it was alleged, was material to his defense. The application is deficient in that it fails to comply with Section 4 of Article 543, C. C. P., in this, that there is not any averment therein that the witnesses are not absent by the procurement of the appellant. See Green v. State, 116 Tex. Cr. R. 2, 32 S. W. (2d) 650; Mayes v. State, 118 Tex. Cr. R. 612, 42 S. W. (2d) 65; Clarich v. State, 137 Tex. Cr. R. 282, 129 S. W. (2d) 291; Owens, v. State, 149 S. W. (2d) 964; Blanton v. State, 161 S. W. (2d) 1063.
Appellant’s next contention is that the evidence is' insufficient to sustain his conviction. A careful review of the record has convinced us' that his contention in this respect is without merit. The testimony adduced by the State shows that on the morning of January 18, 1942, appellant, while driving an automobile. on Washington Avenue in the City of Houston, drove .¿.bout eight, or ten .feet over on the left side-of the middle-of the *167street and collided with another car coming from the opposite direction. Both automobiles were damaged to the extent that they could not be driven away on their own power. The officers who visited the scene of the collision soon after it occurred and who took appellant to jail, testified that he was drunk.
Appellant, who testified in his own behalf, denied that he was intoxicated and claimed that the steering apparatus of his car jammed or locked and he could not steer his car to the right side of the street.
It will be noted that the evidence raised an issue of fact which the jury decided adversely to him, and this court would not, under the facts stated, be authorized to set aside their verdict.
Finding no reversible error in the record, the judgment of the trial court is 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.