
    49108.
    CLARK v. THE STATE.
    Submitted February 7, 1974
    Decided February 25, 1974.
    
      John C. Tyler, for appellant.
    
      Hinson McAuliffe, Solicitor, James L. Webb, Frank A. Bowers, Thomas R. Luck, Jr., for appellee.
   Eberhardt, Presiding Judge.

In this appeal from conviction of three counts of simple battery (Criminal Code § 26-1304), where each count of the accusation provides that "the date alleged herein is an essential averment to this transaction,” the only issue in dispute is whether the batteries alleged in Counts 2 and 3 occurred on the dates specified therein. The evidence shows without dispute that the Count 3 battery occurred on April 21, 1973, as alleged, but that the Count 2 battery occurred after midnight of April 20, 1973, the date alleged in Count 2. Accordingly the judgment and sentence entered as to Count 2 must be reversed and vacated, and the judgment and sentence as to Counts 1 and 3 affirmed.

Judgment affirmed in part; reversed in part.

Pannell and Evans, JJ, concur.  