McFadden v. State

300 S.W. 54, 108 Tex. Crim. 166, 1927 Tex. Crim. App. LEXIS 627

• Court: Court of Criminal Appeals of Texas
• Decided: November 23, 1927
• Docket: No. 11174.
• Status: Published

Opinion

LATTIMORE, Judge.

Conviction for driving an automobile upon a public road while intoxicated, punishment ninety days in the county jail.

This court is without jurisdiction to decide the matters presented upon this appeal because of the fact that the recognizance appearing in the record is fatally defective. It is therein stated that appellant stood charged with and had been convicted of the offense of driving a motor vehicle while under the influence of intoxicating • liquor. There is no such offense known to our statute. Unless the motor vehicle be driven upon a public road while its driver is in a state of intoxication, the law is not offended against. The offense stated is the thing done by appellant, and the charge in the recognizance omits one of its most important elements, viz., that the car be driven upon a public highway.

We take occasion also to call attention to the fact that no sentence appears in the record. The offense of which appellant was convicted, though having as an alternative punishment a fine and confinement in the county jail, is nevertheless a felony. Campbell v. State, 22 Tex. Crim. App. 262. We hold universally that an offense is a felony which is punishable by confinement in the penitentiary, even though it also carries as an alternative penalty a fine or imprisonment in the county jail. We perceive no difficulty in the way of the trial court pronouncing sentence upon the accused, based upon any idea that the punishment assessed was a pecuniary fine or imprisonment in the county jail, or both.

The appeal is dismissed. Dismissed.