Opinion
No. 26799.
February 3, 1954.
Appeal from the County Court, Callahan County, J. L. Farmer, J.
T. M. Reid, Abilene, for appellant.
Wesley Dice, State's Atty., of Austin, for the State.
The conviction is for assault with a motor vehicle; the punishment, 30 days in jail and a fine of $75.
We overrule the contention that the complaint and information are insufficient because of the absence of an allegation that the act was done wilfully.
A complaint for the violation of Art. 1149, Vernon's Ann.P.C., may allege the offense to have been wilfully committed, or that it was committed through negligence, or both. Young v. State, 120 Tex.Crim. R., 47 S.W.2d 320; Clifton v. State, 138 Tex.Crim. R., 135 S.W.2d 115.
The complaint and information alleged that at the time of the assault appellant was driving an automobile on the left side of 'State Highway No. FM 18'.
The state was not bound to allege the specific highway upon which appellant was driving in a negligent manner, but having done so was required to prove the allegation. Duncan v. State, 152 Tex.Crim. R., 213 S.W.2d 824; Blackburn v. State, 150 Tex.Crim. R., 204 S.W.2d 619; White v. State, 82 Tex.Crim. 274, 198 S.W. 964.
In the statement of facts which is agreed to contain the entire evidence adduced and heard by the jury, we are unable to find proof to sustain the allegation that appellant drove an automobile on 'State Highway No. FM 18'.
The judgment is reversed and the cause remanded.