Full opinion text
CHRISTIAN, J. The offense is driving an automobile ou a public road while intoxicated ; the punishment, a fine of $250 and confinement in jail for 60 days. The recognizance appearing in the record is fatally defective. It is stated therein that appellant stands charged with and has been convicted of the offense of driving a cat while intoxicated. Unless the motor vehicle be driven ini a place prohibited by the statute, while the driver is intoxicated, the law is not offended against. Hence one of the important elements of the offense defined by the statute is omitted. Article 802, P. C.; McFadden v. State, 108 Tex. Cr. R. 166, 300 S.W. 54. The appeal is 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 court. On Motion to Reinstate Appeal. LATTIMORE, J. A proper recognizance has been filed. The appeal will be reinstated. There are a number of bills of exception, and the questions raised will be discussed without reference to the hills seriatim. The third count in the indictment, under which conviction was had, charged appellant with operating a motor vehicle upon Front street within the corporate limits of the city of Breekenridge, and the highway east of the town of Breekenridge, known as the Brecken-ri’dge-Caddo Highway, while in a degree under the influence 0⅜ intoxicating liquor. The state’s proof showed appellant to have been drunk on the occasion referred to. There was no proof that appellant drove a car on any highway east of the town of Breekenridge. In making out the case pleaded by the allegations in the third count, viz., that Breekenridge was an incorporated city, the state was allowed to introduce copies of certified copies of instruments entered on pages 65 to 71, inclusive, in a book called “Ordinance Book No. one of the Oity of Breekenridge.” By various bills of exception complaint was made of the introduction of each such copy. We are cited to no authority by the state and know of none justifying the introduction of this testimony. A copy, although a certified copy of a copy, which latter is also a certified copy of an original recorded instrument or minute entry in court records, does not thus become authorized as proper to be introduced in evidence to prove the facts set out in such copy, or the original recorded instrument or minute entry. The original instruments, or certified copies thereof duly filed and of which proper notice is given, might be used to make the proof referred to, or same might he made in other ways under certain circumstances. Ex parte Drake, 55 Tex. Cr. R. 233, 116 S. W. 49. See Civil Statutes regulating introduction of proof of contents of recorded instruments. In no other way was proof made in this case that the city of Breckenridge was an incorporated city. This being a descriptive allegation in the count of the indictment under which conviction was had, it would seem necessary to prove same in some way. The state having failed to make out its case for lack of such proof, the judgment will be reversed, and the cause remanded.