An indictment under section 442 of the Penal Code (1910), which charges the defendant with being and appearing drunk upon a certain highway, is subject to special demurrer unless it contain the further allegation that the drunkenness was caused by “the excessive use of intoxicating wines, beers, liquors, or opiates.” In this case it was error to overrule the ground of the demurrer which pointed out this specific defect. There is no merit in the other grounds of the demurrer. The court having erroneously overruled the demurrer, everything thereafter occurring was nugatory.

Judgment reversed.