The state has filed a motion for a rehearing asserting that *Page 169 the conviction of relator in the corporation court of the city of Clarksville was of the state law (Art. 827a, sec. 8, Vernon's Ann. Tex. P. C.) and not a violation of the ordinance of said city.
The complaint under which relator was convicted charged that he operated and drove a motor vehicle "within the corporate limits of the incorporated City of Clarksville, Texas, there situate at a rate of speed in excess of 30 miles per hourcontrary to the statutes of the State of Texas, and theordinances of the City of Clarksville in such cases made andprovided, and against the peace and dignity of the State." (Italics ours).
There is no question but that the complaint was so drawn that a conviction could have been had on either a violation of the ordinance of the city or of the state law. The judgment recites that the verdict of the jury read, "We the jury find the defendant guilty as charged and assess his fine as $25.00," signed by the foreman. The judgment continues: "It is therefore considered and adjudged by the court that the State of Texas, do have and recover of the said Sodie Watson, defendant, the sum of twenty-five dollars fine, and all the costs of this prosecution," etc. Without a recital in the verdict or judgment that the conviction was for a violation of the state law, how is this or any other court to know whether the conviction was of the state law or of the ordinance? Certainly not merely by an assertion in a motion or a brief unsupported by anything in the record.
There is no question but that the ordinance was void for the reasons pointed out in our original opinion.
We still believe our disposition of the case originally was correct, and the state's motion for rehearing is overruled.