
    Dutch SMOOT v. STATE.
    No. 13737.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1930.
    Rehearing Denied Dec. 17, 1930.
    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 Atty., of Austin, for the State.
   MORROW, P. J.

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 now before us. No complaint of the ruling of the trial judge is brought forward by bill of exceptions or otherwise. No fundamental error has been perceived.

The judgment is affirmed.

HAWKINS, J., absent.

On Motion for Rehearing.

LATTIMORE, J.

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 Tex. App. 533, 11 S. W. 628; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Ellis v. State, 85 Tex. Cr. R. 529, 213 S. W. 264; Polk v. State, 101 Tex. Cr. R. 405, 275 S. W. 1003.

The motion for rehearing is overruled.  