Opinion
No. 13737.
Delivered November 5, 1930. Rehearing denied December 17, 1930.
1. — Intoxicating Liquor — Practice.
Where there is no statement of facts, no bills of exception and no fundamental error, the case will be affirmed.
ON MOTION FOR REHEARING.2. — Indictment — Conclusion.
Where the indictment contains two counts, the formal conclusion at the end of the indictment will be applied to the first count upon the withdrawal or quashing of the second.
Appeal from the District Court of Hutchinson County. Tried below before the Hon. E. J. Pickens, Judge.
Appeal from a conviction for selling intoxicating liquor; penalty, confinement in the penitentiary for one year.
The opinion states the case.
Ridgell Saunders of Pampa, Hart Patterson and Hardy Hollers all of Austin, and Lockhart, Garrard Brown of Lubbock, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Unlawfully selling intoxicating liquor is the offense; penalty, confinement in the penitentiary for one year.
The indictment appears regular. The facts heard by the trial court are not before us. No complaint of the ruling of the trial judge is brought forward by bill of exception or otherwise. No fundamental error has been perceived.
The judgment is affirmed.
Affirmed.
HAWKINS, J., absent.
ON MOTION FOR REHEARING.
The second count of the indictment only, concluded "against the peace and dignity of the State." The withdrawal of the second count in no way invalidates the first. The formal conclusion at the end of the indictment will be applied to the first count upon the withdrawal or the quashing of the second. Alexander v. State, 27 Texas Crim. App. 533; Morgan v. State, 31 Tex.Crim. Rep.; Ellis v. State, 85 Tex.Crim. Rep.; Polk v. State, 101 Tex.Crim. Rep..
The motion for rehearing is overruled.
Overruled.