The opinion
ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.
In his motion for rehearing appellant again challenges the sufficiency of the information and complaint, and insists that the majority opinion is erroneous in holding to the contrary. The present writer assumes his full measure of responsibility for the original opinion, but appellant’s motion has brought about a further consideration of the question with the result that he now believes the majority opinion was erroneous.
The averments in the information are set out in full in the original opinion, and it is not necessary to here repeat them. Reference to the information will disclose that there is no direct averment that “McKinney Ave. Viaduct” was in Dallas County, nor any direct averment that the “drunk” driving was done in Dallas County. It is directly and positively averred that appellant was intoxicated in Dallas County.
One requisite of an indictment (Art. 396, subdiv. 5 C. C. P.) is that: “It must show that the place where the offense was committed is within the jurisdiction of the court in which the indictment is presented.”
The offense here sought to be charged was not being intoxicated in Dallas County, but that while intoxicated appellant drove an automobile upon a public road in Dallas County.
Expressions are found in our opinions from the beginning to the present time which have crystalized in the language found in Note 2 under Art. 398, Vernon’s Tex. C. C. P., Vol. 1, and supported by the authorities there cited, as follows: “Every indictment or information should be drawn with reference to the idea that an innocent man should know the facts charged against him that he may prepare to meet them, and the averments should be direct, positive and certain, not argumentative or inferential. State v. Baggerly, 21 T. 757; Lewellen v. State, 18 T. 538; State v. Odum, 11 T. 12; Estes v. State, 10 T. 300; Bush v. Republic, 1 T. 455; Moore v. State, 7 Tex. App. 608; Hunt v. State, 9 Tex. App. 404; Kerry v. State, 17 Tex. App. 179, 50 Am. Rep. 122 ; Pierce v. State, 17 Tex. App. 232; Peralto v. State, 17 Tex. App. 578; Parker v. State, 9 Tex. App. 351; Prophit v. State, 12 Tex. App. 233; Thompson v. State, 16 Tex. App. 159; Brown v. State, 26 Tex. App. 540, 10 S. W. 112 .”
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Mr. Branch in his valuable Texas Annotated Penal Code, in Sec. 493, p. 255, expresses the same principle a little more concisely and supports the text by the authorities cited, as follows: “Facts must be alleged by direct, certain and positive averments, and not by way of argument and inference. Moore v. State, 7 Texas App. 608; McQuerry v. State, 40 Texas Crim. Rep. 571 ; 51 S. W. 247 ; West v. State, 40 Texas Crim. Rep. 575 , 49 S. W. 95 ; Bradford v. State, 40 Texas Crim. Rep. 632 ; 51 S. W. 379 .”
In support of his motion for rehearing appellant cites Eylar v. State, 37 Tex. Cr. R. 257 , 39 S. W. 665 ; Mohan v. State, 42 Tex. Cr. 410, 60 S. W. 552 ; Freeman v. State, 88 Tex. Cr. R. 53 , 244 S. W. 1087 ; Senterfit v. State, 41 Texas (Sup. Ct.) 186. While none of the cases last above cited are prosecutions for the same offense attempted to be charged against appellant it is difficult to escape their applicability to the question of the sufficiency of the present information.
There being no direct or positive averment that the driving was done in Dallas County, or that the place named — the viaduct — was in Dallas County, it is only by inference.
The motion for rehearing is granted, the judgment of affirmance is set aside and the judgment of the trial court is reversed and the prosecution ordered dismissed upon the present State pleadings.