This prosecution arose under Art. 1149, P. C., which denounces the offense of assault with a motor vehicle. The trial was to the court, with punishment assessed at a fine of $50.
The charging part of the information reads as follows:
. did then and there drive and operate a motor vehicle, to-wit, an automobile truck, and while so engaged did then and there commit an aggravated assault in and upon the person of Bertha Tyler by wilfully and with negligence colliding with an automobile, which said automobile was then and there occupied by the said Bertha Tyler, then and there and thereby causing injury less than death to the said Bertha Tyler.”
In Merryman v. State, 153 Texas Crim. Rep. 593, 223 S. W. 2d, 630, we held such a pleading sufficient, as against the contention that the negligence relied upon should be alleged as under negligent homicide. In reaching that conclusion, however, we made it clear that where negligence is relied upon to constitute a violation of the assault-with-a-motor-vehicle statute (Art. 1149, P. C.) it must be such negligence as comes within the meaning of negligent homicide (Arts. 1231 and 1238, P. C.)
So, in the instant case where the state relies for a conviction upon the negligent rather than wilful act of the appellant, the facts, to be sufficient to support a conviction, must show such negligence. Appellant earnestly insists that the facts do not so show.
Negligence, to constitute negligent homicide, is of two kinds, viz., that which happens in the performance of a lawful act and *523that which occurs in the performance of an unlawful act (Art. 1230, P. C.), known, respectively, as negligent homicide of the first degree and negligent homicide of the second degree.
There being no allegation in the information as to appellant’s negligent acts upon which the state relies for a conviction, or whether of the first or second degree, it follows that this conviction should be sustained if the facts show any negligent act on the part of the appellant which would constitute negligence under the law of negligent homicide.
In this connection, it must be remembered that, whatever the character of negligence relied upon to constitute negligent homicide, there must be an apparent danger of causing the death of the person killed or of some other (Art. 1232, P. C.), and no apparent intention to kill (Art. 1235, P. C.).
Obviously, these elements of negligent homicide enter into the instant prosecution, where death did not result, only in determining whether negligence such as would authorize the instant conviction has been shown.
The injured party, Bertha Tyler, was riding in an automobile driven by her son along a public highway. She testified:
“I do not know of my own knowledge what struck us. I did not see an automobile before the accident. I was taken to a hospital where I remained for three months.”
The son testified as follows:
“I have no knowledge of what vehicle was involved in the accident with me. The front and side of my car were struck, and some on the other side. I was driving on the right side of the road. I don’t know how wide that road is. It is wide enough for more than two cars. It has no esplanade, and I do not recall a painted center stripe. I was on my proper side of the road, and was going about 25 miles an hour. I did not hear any horn or other warning signal before the accident. I don’t exactly know if it happened at an intersection, or where. Winkler Drive is a public street in Harris County, Texas.”
The state offered in evidence the voluntary statement of the appellant, in which he said:
“My name is Howard C. Nichols. I am 24 years of age. I reside at 115 Aurora. I have been driving a Taystee Bread *524Truck for the Taystee Bread Co. for about 1 1/2 years. My rout at this time is in Galveston Texas. I drive from Houston to Galveston every day on my route. Today about 3:50 P.M. as I was coming through Park Place. I was going west on Winkler about 20 to 25 MPH. It had been raining some and the street was slick. Traffic was medium I guess I had met about 6 cars in the last block. I had just met a car when the right rear wheel of the truck slipped off the pavement and this threw the front of the truck into the path of another car the left of my truck struck the left front of the other car which was going east on Winkler there was a boy about my own age driving the other car and there was a woman in the car with him. The impact knocked my truck around headed in the opposite direction of travel. I got out of my truck and saw that the occupants of the car were injured and told a man to call the police and an ambulance.”
Whether the facts do or do not warrant the conclusion that the collision was the result of an unavoidable accident is not necessary to be here determined, for the trial court, by the judgment entered, has found that the collision resulted from the negligence of the appellant. The conviction must stand or fall upon that finding.
There appears to be no issue between the state and the appellant as to the immediate cause of the collision — that is, that the right rear wheel of the truck appellant was driving slipped off the pavement, throwing the front of the truck into the path of the oncoming car. The state, in offering the voluntary statement of the appellant to that effect, made that its testimony. No one testified to the contrary. The appellant testified to the same fact.
If appellant was negligent, then it was by reason of the fact that the truck “slipped” off the highway after he “had just met” another car.
What act, if any, on the part of the appellant caused his truck to slip from the highway the record does not reflect.
While it is true that the negligence contemplated in negligent homicide may arise out of the failure to exercise ordinary care (Art. 1233, P. C.; Guajardo v. State, 139 Tex. Cr. R. 201, 139 S. W. 2d 85), such failure must, of necessity, be established by the proof and cannot be the subject of supposition or conjecture.
*525The state having by its evidence shown that the immediate cause of the collision was by reason of the fact that the truck appellant was driving “slipped” from the highway and there being no proof that such slipping from the highway was caused by or resulted from an act of negligence on the part of the appellant, we are constrained to hold the facts insufficient to sustain the conviction.
The judgment is reversed and the cause remanded.
Opinion approved by the court.