(dissenting).
I cannot concur in sustaining the conviction of an accused where the information wholly fails to charge a crime within the jurisdiction of the trial court and where *325two misleading instructions are' given to the jury, even though inept counsel appearing with the accused at the trial did not question the sufficiency of the information nor save an exception to the instructions which were given. The defendant is ' being forced to serve one year in the peni-' tentiary upon conviction on an information which all three members of this court and the Attorney General admit is defective because he was defended in the trial court by an inexperienced lady who made no proper record to afford a basis for an appeal.
This court has consistently held that where an information is fundamentally defective so that it states no crime,' such question may be presented for the first time on appeal. Ex parte Brown, 77 Okl. Cr. 96, 139 P.2d 196; Brannon v. State, 94 Okl.Cr. 261, 234 P.2d 934; Cornett v. State, 96 Okl.Cr. 125, 250 P.2d 55. In the instant case the majority concede that .the information is defective and if a demurrer had been filed and overruled, the case would have been reversed. This appeal should be governed by the similar case of Chandler v. State, 96 Okl.Cr. 344, 255 P.2d 299, wherein this court established the following rules of law as shown by the syllabus:
“1. Where an information is so fundamentally defective that it wholly fails to state facts constituting a crime within the jurisdiction, of the trial court, the question of its sufficiency may be raised for the first time on appeal.
“2. The gist of the sufficiency of an information is not whether it might possibly have been made more certain; but whether it alleges every element of the offense intended to-be charged and sufficiently apprises .the defendant of-what he must be prepared to.meet.
“3. In a prosecution for driving a motor vehicle on a highway while tin-' der the influence of intoxicating liquor, 47 O.S.1951 § 93, the essential elements of the crime which must be alleged in the information are: (1) the driving of a motor vehicle, (2) while under the influence of intoxicating liquor, and (3) on a highway as defined by statute. Where any one of these three essential elements are omitted from the information, it is fatally defective.
“4. Information which merely alleged defendant drove an automobile while under the influence of intoxicating liquor and omitted an allegation that it was driven on a highway or street in the State of Oklahoma was insufficient to charge a crime under the statute prohibiting the driving of a motor vehicle on a public highway while under the influence of intoxicating liquor. 47 O.S.1951 § 93.”
In the Chandler case no demurrer or attack on the information was made in the trial court but the question of its sufficiency was raised for the first time on the appeal. In fact, the defendant Chandler entered a plea of guilty and then appealed. The information in the Chandler case alleged that the defendant did drive a Ford coupe “ 'at and upon Guthrie Short Cut, from an unknown point to a point ⅜ mile north of N.E. 23rd Street, adjacent to Oklahoma City, * * ” The writer of the majority opinion in the instant case stated as follows in the Chandler case:
“An allegation that one drove at and upon a short cut to or from Guthrie ‘from an unknown point to a point ½ mile north of N.E. 23rd Street, adjacent to Oklahoma City’, obviously might mean any number of routes over private property not open to the public. Likewise, the allegation in the information that the defendant drove in and upon ‘Guthrie Short Cut’, while limiting the travel to a particular short cut, even so it could have been through private property not open to public travel at the point in question. And while such possibility is perhaps slight, there is too much speculation to meet the requirements of the statute. The real difficulty is that ‘short cut’ is not syfi-*326onymous with ‘turnpike’, or ‘highway’ or ‘public road’. 'Guthrie Short Cut’ is not a name ascribed to a part of the public highways of this State by the State Highway Department and so officially marked ■ by signs along the-, route or by its official maps, so far as anything in the record discloses, or of which this court might take judicial notice.”
In the instant case there is no statement in the information by which this court can infer that the defendant drove his automobile on a highway or street as defined by the statute. 47 O.S.1951 § 93. Not even in the caption to the information where the offense is named does the author of the information use the word “highway” or “street” but merely describes the crime as “driving while intoxicated.” The third essential element of the crime of. driving a motor vehicle on a highway while under the influence of intoxicating liquor as shown in syllabus three of the Chandler case, supra, is missing from the information.
In Mayes v. State, 80 Okl.Cr. 52, 156 P.2d 822, this court held that it was not a' violation of the law for an accused to drive his automobile while intoxicated in a hay meadow off the public road.
Here the information recites that defendant drove a Chevrolet automobile “in the 3800 block, North Lewis in Tulsa County, Oklahoma.” We cannot take judicial notice that North Lewis is a street in the City of Tulsa. A city block encompasses an area of land generally square or rectangular in shape. The word “block” does not denote street or highway. In fact, where the preposition “in” is used referring to a city block, this indicates to my mind that the driving could be on a private driveway in the block and not along a street adjacent to a block. If the-driving of an automobile was done on private property not a street as defined by statute, no offense would have been committed even though the driver was intoxicated.
Judge Brett in his specially concurring opinion stated that he was concurring on the basis of the rule set forth in Argo v. State, 88 Okl.Cr. 107, 200 P.2d 449, 450. A reading of that case discloses that the caption to the information correctly defined the. offense and in the body of the information it was alleged that defendant did “ ‘while under the influence of intoxicating liquor, drive, operate and propel an automobile on the public streets of Coal-gate, Oklahoma, to-wit: from a point to your informant unknown, to another point in Coal County, State of Oklahoma, to-wit: a point on Main Street in the City of Coal-gate, due east of the Palace Drug making a U-turn^ * * * I can’t see how the Argo case can be any consolation to the majority because there it is .stated in unmistakable language that the driving was on a street in Coalgate and the point at which the driving occurred is sufficiently stated. In the instant case, however, at no place in the information is the word “street” or “highway” used, either in the caption or in the body of the information; no city is named;' everything is left to conjecture. The majority agree that if the accused had entered a plea of guilty to the information as drawn and had appealed as was done in the Chandler case, he would have had a better chance for a reversal. If an information is fundamentally defective, we should not sustain a judgment of conviction' whether 'the appeal is taken after a trial or after a plea of guilty. The information here was far less sufficient than that which we held fundamentally defective in Jones v. State, 94 OKl.Cr. 15, 229 P.2d 613;
The proof of intoxication of the accused as pointed out by the majority was weak. The trial court recognized that fact and as stated in the majority opinion said that he would modify the verdict of the jury if he had the power. I feel that the prior record of the accused has been the determining factor in swaying the majority of the court to the conclusion that although the information was defective it should not be held insufficient to support the judg*327ment. In adopting the opinion the majority have changed the established rule that a fundamentally defective information may be questioned at any time so as to provide that a fundamentally defective information may be questioned for the first time on appeal unless the accused has a prior criminal record,
I cannot be consistent with expressions I have made in' other cases herein cited if I do not dissent to the majority opinion. The information as drawn is wholly insufficient to comply with the fundamental requirements of pleading.