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LEATON EUGENE AKIN v. STATE (12/11/57)

December 11, 1957

LEATON EUGENE AKIN
v.
STATE



165 Tex. Crim. 367.

Woodley, Judge.

Author: Woodley

[ 165 Tex. Crim. Page 368]

    ON STATE'S MOTION FOR REHEARING A re-examination of the record convinces us that the state was seeking to obtain a conviction under Art. 6701h, Sec. 31, V.C.S., with a jail term or fine, or both, as provided in Sec. 32 of said Art. 6701h V.C.S.

The complaint and information nowhere disclose whether the license which appellant failed to return had been suspended by the Texas Department of Public Safety after a motor vehicle accident report under authority of Art. 6701h V.C.S., or had been suspended under authority of Art. 6687b V.C.S., Sec. 22 or 24.

If such license had been suspended "as herein provided" (under Art. 6701h, Sec. 5) the punishment assessed against appellant being within the terms of Sec. 32 was authorized.

On the other hand, if appellant's operator's license had been duly suspended under authority of Sections 22 or 24 of Art.

[ 165 Tex. Crim. Page 3696687]

    b V.C.S., then the punishment for failure to surrender such license is found in Section 44 of said article, which provides for a fine only, and the jail term assessed against appellant would not be authorized. Because the complaint and information fail to allege that appellant's operator's license had been suspended as provided in Art. 6701h, Sec. 5, V.C.S., they are fatally defective.

The State's motion for rehearing is overruled.

19571211

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