The indictment alleged that appellant, while intoxicated and under the influence of intoxicating liquor, drove and operated his automobile over a public highway of this state and, while so operating the automobile, by accident and mistake, killed B. C. McCaslin by driving the automobile into and causing it to strike the deceased. Such indictment charged an offense under Art. 802c, Vernon’s P. C. The punishment was assessed at two years in the penitentiary.
In attempting to drive around and pass another automobile on the afternoon of September 9, 1951, while it was raining, appellant struck and killed the deceased with his automobile— deceased at the time walking about three feet off the paved portion of the public highway.
Appellant did not stop after striking the deceased.
The issue is whether appellant was under the influence of intoxicating liquor at the time.
*488The other occupant in appellant’s automobile at the time, by whom it was shown that appellant sometime prior thereto had taken a sip or drink from a bottle of Coca Cola containing some whisky, also testified that appellant was not intoxicated at the time and did not do anything that would tend to establish that he was intoxicated.
Appellant was guilty of failing to stop and render aid, but we are unable to conclude from this record that the state’s testimony showed he was intoxicated at the time.
The judgment is reversed and the cause remanded.
Opinion approved by the court.