Wootan v. State

HAWKINS, Judge. — Conviction 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 19th, 1922 was served with a purported copy of the indictment. He was released on bond June 26th, 1922. When the ease 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, 94 Texas Crim. Rep., 253, 252 S. W. Rep., 787 is direct authority sustaining the action of the court in the matter complained of. The judgment is affirmed. Affirmed.