#### Roy Glen SHARP, Appellant, v. The STATE of Texas, Appellee.

No. 28678.

Court of Criminal Appeals of Texas.

Jan. 2, 1957.

*933C. S. Farmer, Waco, for appellant.

Tom Moore, Jr., Criminal Dist. Atty., Donald O. Hall, Asst. Criminal Dist. Atty., Waco, and Leon B. Douglas, State’s Atty., Austin, for the State.

DAVIDSON, Judge.

This is a conviction for driving an automobile while intoxicated upon a public highway; the punishment, a fine of $100 and three days in jail.

In his brief, appellant very frankly admits that the sole question here presented for review is the sufficiency of the evidence to support the conviction. In this connection it is insisted that the evidence nowhere shows that the appellant was the driver of the automobile.

The state’s case depends upon the testimony of the witness Fades, a highway patrolman. He testified as follows:

> “I was patroling the road near Riesel * * * I observed the defendant and two other men, one of whom was named Simpson, in an old model Chevrolet automobile * * *. I saw this car weaving or wobbling and it pulled to the shoulder of the road and stopped. It looked like the defendant was trying to put something under the seat of the car. When the car started off from where it was parked on the shoulder of the road I pulled up with my siren on and their car stopped immediately and I stopped and got out of my car and got the defendant out of the other car and put him in my car. The defendant staggered and smelled of liquor. I brought the defendant to Waco in my car and placed him in jail. All this occurred in McLennan County, Texas. As to whether or not he was drunk, in my opinion he was under the influence of intoxicating liquor. I found a part of a half pint of whiskey in their car. The bottle of whiskey you hand me is the whiskey I took out of the front of their car.”

The foregoing is the entire testimony of the state’s witness under and by virtue of which it might be said that the state proved that the appellant was the driver of the automobile.

As a witness in his own behalf, the appellant testified as follows:

> “My name is Roy Glen Sharp. I work at an Humble Service Station here in Waco. I have been working for the Humble Oil & Refining Company 23 years. I have not drunk any intoxicating liquors for a long time on account of an ulcerated stomach. I take some pills for my stomach that were prescribed by a Doctor and had been taking some of these pills on the day I was arrested. When I take these pills they make me 'goofy’ and I stagger. If the car was weaving or wobbling it was on account of concrete blocks in the back of the car. I was not drinking, drunk or under the influence of intoxicating liquors on the day I was arrested.”

The foregoing is all the testimony adduced upon the trial of the case.

Nowhere in the testimony is it shown that the appellant was the driver of the automobile. If he was the driver thereof, such fact was shown only by inference and supposition. If the witness Eades saw appellant driving the automobile, he could have so testified. If appellant was the driver thereof when arrested, he, too, could have been interrogated relative thereto.

*934The appellant’s contention is well taken. The facts do not show that he was the driver of the automobile. Without such proof, guilt has not been shown.

The judgment is reversed and the cause is remanded.