Opinion
No. 17935.
Delivered February 26, 1936.
1. — Automobile Trucks on Highway — Complaint.
Complaint charging that defendant operated a truck-tractor and semi-trailer, a combination vehicle, in excess of 7,000 pounds net load, held insufficient, as against motion to quash for failure to charge by direct and positive averments that there was on said truck a load exceeding in weight 7,000 pounds.
2. — Same.
Under the statute making it an offense to operate a commercial motor vehicle, etc., with load exceeding 7,000 pounds, all that is essential to constitute the offense must be sufficiently charged and cannot be aided by intendment.
3. — Same.
Facts constituting the offense under the statute limiting loads of commercial motor vehicles, etc., must be set forth so that the conclusions of law may be arrived at from the facts so stated.
Appeal from the County Court at Law No. 2, Harris County. Tried below before the Hon. Frank Williford, Jr., Judge.
Appeal from conviction for a misdemeanor under a statute limiting the loads of commercial motor vehicles; penalty, fine of $125.00.
Reversed, and prosecution ordered dismissed.
The opinion states the case.
Frank E. Mann, of Houston, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The conviction is for a misdemeanor; the punishment, a fine of $125.
The prosecution proceeded under sec. 5, Acts 1929, 41st Legislature, Second Called Session, p. 72, chap. 42, as amended by Acts 1931, 42nd Legislature, p. 507, chap. 282. 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 seven thousand 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, 38 S.W.2d 587.
The judgment is reversed and the prosecution ordered dismissed.
Reversed and prosecution ordered dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the Court.