Dugan v. State

264 S.W.2d 120, 159 Tex. Crim. 364, 1954 Tex. Crim. App. LEXIS 2298

• Court: Court of Criminal Appeals of Texas
• Decided: February 3, 1954
• Docket: 26799
• Status: Published

Opinion

WOODLEY, Judge.

The conviction is for assault with a motor vehicle; the punishment 30 days in jail and a fine of $75.

We overruled the contention, that the complaint and infor mation are insufficient because of the absence of an allegation that the act was done wilfully.

A complaint for the violation of Art. 1149 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. Cr. Rep. 39, 47 S.W. 2d 320; Clifton v. State, 138 Tex. Cr. Rep. 258, 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. Cr. Rep. 283, 213 S.W. 2d 824; Blackburn v. State, 150 Tex. Cr. Rep. 572, 204 S.W. 2d 619; White v. State, 82 Tex. Cr. Rep. 274, 198 S.W. 964.

In the statement of facts, which is agreed to, containing 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.