
    Dutch Smoot v. The State.
    No. 13737.
    Delivered November 5, 1930.
    Rehearing denied December 17, 1930.
    Reported in 32 S. W. (2d) 1116.
    
      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.
   MORROW, Presiding Judge.

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.

LATTIMORE, Judge.

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 Texas Crim. Rep. 1; Ellis v. State, 85 Texas Crim. Rep. 529; Polk v. State, 101 Texas Crim. Rep. 405.

The motion for rehearing is overruled.

Overruled.  