Opinion
No. 24073.
June 2, 1948.
1. — Information — Descriptive Averments — State Bound.
Where information alleged that appellant while intoxicated did "drive a motor vehicle, to-wit: 1938 Model Chevrolet Pickup, upon a public highway within said county, to-wit: East Washington Street in the City of Shephenville, Texas," the State was bound by the descriptive averments as to the vehicle and the particular street alleged.
2. — Evidence — Insufficient to Sustain Allegations.
Evidence that appellant was driving a "pickup" on East Washington Street in Erath County does not satisfy or meet the allegations of the information which charged appellant with having driven a "1938 Model Chevrolet Pickup, upon __________ East Washington Street in the City of Stephenville, Texas."
3. — Averments — State's Pleading Must Be Established.
The rule of law which requires the State to establish the descriptive averments in the State's pleading is well established.
Intoxicated driver. Appeal from County Court of Erath County; penalty, fine of $100.00 and ten days in jail.
Hon. J. O. Garrett, Judge Presiding.
Reversed and cause remanded.
C. O. McMillan, of Stephenville, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
This is a conviction for driving an automobile while intoxicated; the punishment, a fine of $100.00 and ten days in jail.
The information alleged that appellant, while intoxicated, did "drive a motor vehicle, to-wit: 1938 Model Chevrolet Pickup, upon a public highway within said county, towit; East Washington Street in the City of Stephenville, Texas."
Appellant challenges the sufficiency of the evidence to sustain the conviction in two particulars: (a) there is no testimony sustaining the allegation that the motor vehicle alleged to have been driven was a "1938 Model Chevrolet Pickup" and, (b) there is no testimony sustaining the allegation that the motor vehicle was driven upon "East Washington Street in the City of Stephenville, Texas."
An examination of the statement of facts sustains appellant's contention. There is testimony that appellant was driving a "pickup" on East Washington Street in Erath County. This is as far as the testimony goes towards establishing the descriptive averments as to the year, model, and name of the motor vehicle so driven. There is no testimony that East Washington Street, where the witness saw appellant driving the "pickup," was in the City of Stephenville, Texas, as alleged.
There is perhaps no rule of law more firmly established in this State than that which requires the State to establish the descriptive averments contained in the State's pleading.
Here, it would have been sufficient to have alleged merely that appellant, while intoxicated, drove and operated a motor vehicle upon a public highway in Erath County. This the State did not do but described, with unnecessary particularity, the motor vehicle, as also the place where same was alleged to have been driven, thereby assuming the burden of establishing, by proof, such descriptive averments. Not having sustained these descriptive averments by the testimony, the evidence fails to sustain the conviction.
The judgment is reversed and the cause remanded.
Opinion approved by the Court.