Stribling v. State, 17935.

• Decision Date: 26 February 1936
• Docket Number: No. 17935.,17935.
• Citation: 91 S.W.2d 735
• Parties: STRIBLING v. STATE.
• Court: Texas Court of Criminal Appeals

91 S.W.2d 735

STRIBLING v. STATE.

No. 17935.

Court of Criminal Appeals of Texas.

February 26, 1936.

Commissioners' Decision.

Appeal from County Court at Law, No. 2, Harris County; Frank Williford, Jr., Judge.

T. Stribling was convicted for a misdemeanor under a statute limiting the loads of commercial motor vehicles, and he appeals.

Reversed, and prosecution ordered dismissed.

Frank E. Mann, of Houston, for appellant.

Lloyd W. Davidson, State's Atty., for the State.

CHRISTIAN, Judge.

The conviction is for a misdemeanor; the punishment, a fine of $125.

The prosecution proceeded under section 5, Acts 1929, 41st Leg. 2d Called Sess. p. 72, c. 42, as amended by Acts 1931, 42d Leg. p. 507, c. 282 (Vernon's Ann.P.C. art. 827a, § 5). We quote said section as follows: "No commercial motor vehicle, truck-tractor, trailer, or semi-trailer shall be operated on the public highway outside of the limits of an incorporated city or town with a load exceeding seven thousand (7000) pounds on any such vehicle or train or combination of vehicles."

Omitting the formal parts, the complaint reads as follows: "Did then and there unlawfully operate a truck tractor and Semi trailer, a combination vehicle, upon the public highway, outside the city limits of an incorporated town or city, to-wit State Highway No. 19, in county of Harris, precinct No. 7, State of Texas in excess of seven thousand pounds net load."

Appellant made a motion to quash the complaint on the ground that it failed to allege that there was on said truck a load exceeding in weight 7000 pounds. Omitting the parts of the complaint descriptive of the place where the offense attempted to be charged was committed, we have the following wording: "T. Stribling did then and there unlawfully operate a truck tractor and Semi trailer in excess of seven thousand pounds net load." We think the complaint fails to charge by direct and positive averments that there was any load on the truck. Under our statute, all that is essential to constitute the offense must be sufficiently charged and cannot be aided by intendment. The facts constituting the offense must be set forth so that the conclusions of law may be arrived at from the facts so stated. Jones v. State, 118 Tex.Cr.R. 106, 38 S.W.(2d) 587.

The judgment is reversed, and the prosecution ordered dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the...