
    WOOTAN v. STATE.
    (No. 7750.)
    (Court of Criminal Appeals of Texas.
    Jan. 2, 1924.)
    Criminal law &wkey;>627 (5) — Dismissal of count of which inaccurate copy -was served on defendant and) trial on another count held proper.
    The first count of an indictment charged defendant with selling intoxicating liquor, and the second count with furnishing intoxicating liquorto a named person. In the copy of the indictment served on defendant the word “intoxicating” in the second count was omitted. On defendant’s refusal to plead on the ground that he had not been served with a true copy, the second count was dismissed, and defendant was forced to trial under the first count, a correct copy of which had been served on him. Held, there was no error.
    Appeal from District Court, Flano County; J. H. McLean, Judge.
    I. B. Wootan was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Flack & Flack, of Menard, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for the sale of intoxicating liquor. Punishment, two years in the penitentiary.

The evidence is sufficient to support the verdict and judgment. Only one question of law is presented. The indictment contained two counts. The first charged the sale of liquor to one Willbern; the second charged that appellant “furnished” liquor to said Willbern. Appellant was arrested and placed in jail, and on June 19, 1922, was served with a purported copy of the indictment. He was released on bond June 26, 1922. When the case was called for trial at the December term of court, appellant declined to plead, insisting that he had never been served with a true copy of the indictment. It developed: that the copy served upon appellant was correct as to the first count charging a sale, but in copying the second count the clerk had omitted the word “intoxication,” making it appear in the second count as though appellant was charged with furnishing “liquors capable of producing -.” When this defect in the second count (as it appeared in the copy of the indictment served upon appellant) was made known to the court, the district attorney, with the court’s permission, dismissed as to the second count, and appellant over protest was forced to’ trial upon the first count, a correct copy of which had been served upon him. Wimberly v. State (Tex. Cr. App.) 252 S. W. 787, is direct authority sustaining the action of the court in the matter complained of.

The judgment is affirmed. 
      ®=oFor other eases see same topic and' KEY-NUMBER in all Key-Numbered Digests and Indexes
     