
    J. H. King v. The State.
    The counts in an indictment are independent of each other, and the first or any other count may be quashed without impairing the balance. (Note 53.)
    It is the generally received rule of practice, both in the English and American courts, where one or more of several counts in an indictment are bad, to pass judgment upon the good counts, and, if judgment is passed generally, the presumption is that itwas passed upon the good counts.
    Appeal from San Augustine. The appellant was indicted under article 563 of the Digest. The indictment contained three counts. The surname of the defendant was omitted in the first count, and on his motion it was quashed. The second and third counts described the defendant by his Christian and surname in full. The second described the house 'where the offense was alleged to have been committed as a public gaming house; the third, as a house for retailing spirituous liquors. The description of the house in the second count in the indictment and in the proof was the same as in the case just decided of Lockhart against The State. The defendant was put upon his trial on the second and third counts, and found guilty, and, after a motion for a new trial and in arrest of judgment, overruled, he appealed.
    
      B. J. Lewis, for appellant.
    The first count or charging part of this indictment was overruled by the court, which destroyed the whole, there being nothing on which to build the remaining charges. It was correctly overruled, because the surname of defendant was omitted; and it being the head of the whole indictment, it should therefore have been held bad. (Americau Criminal Law, page 104.)
    
      Attorney General, for appellee.
   WiieeleR, J.

The ground mainly relied on for a reversal is the omission of the surname of the defendant in the first count in the indictment. That count, however, was quashed, and consequently was withdrawn from tlie consideration of the jury. The argument of counsel proceeds on the mistaken supposition that the different counts in the indictment are dependent upon one another, whereas they are distinct and independent. The trial and verdict were upon the good counts, and not on that which was quashed. But had it been upon all three under the generally recognized rules of practice, the insufficiency of one count would not have authorized a reversal. “The practice (it is said) both in England and this country has always been, where there “has been a gei íeral verdict of guilty on an indictment containing several counts, “some bad and some good, to pass' judgment on the counts that are good, on “the presumption that it was to them that the verdict of the jury attached; and “on the same reasoning, where one of two counts is bad and the defendant is “found guilty and sentenced generally, the presumption of law is that the “court awarded sentence on the good count; and the sentence is not erroneous if it is awarded by the law applicable to the offense charged in that “count.” (Wharton’s Am. C. L., 618, 619.)

Such, unquestionably, is the generally received rule of practice both in the English and American courts. 'But it is' not necessary to invoke its aid to sustain the conviction in this case, for, as we have said, it was upon the second and third counts. Their sufficiency and that of the proof under them to warrant the conviction is quite too clear to admit of a question. The judgment is affirmed.

Judgment affirmed.

Note 53. — The State v. Rutherford, 13 T., 24.  