This is an appeal from an order of the District Court of Baylor County, Texas, revoking the suspension of sentence theretofore granted to the appellant.
The record shows that on the 18th day of September, A.D. *Page 374 1933, the appellant plead guilty to an indictment in the District Court of Baylor County charging him with the offense of unlawfully selling intoxicating liquor. A jury found him guilty as charged and assessed his punishment at confinement in the State penitentiary for a term of five years, but recommended that sentence be suspended. A judgment was entered in accordance with the verdict of the jury and their recommendation. Thereafter, on the 21st day of November, 1934, appellant entered a plea of guilty in the District Court of the United States for the Northern District of Texas at Wichita Falls, to an indictment charging him with unlawfully possessing and transporting untax-paid whisky and concealing and removing untax-paid whisky, a felony. Thereafter, on the 8th day of February, 1935, the District Attorney of the District Court in and for Baylor County, Texas, filed a motion in cause No. 1825, styled the State of Texas v. Roy McCord, asking that suspension of sentence be revoked in accordance with Art. 779, C. C. P. A capias was issued for the appellant in said cause as provided by law. On the 12th day of February, 1935, the motion for the revocation of the suspended sentence theretofore granted the appellant, Roy McCord, came on to be heard and at the conclusion of the testimony the court granted the motion and revoked the suspension of sentence, and sentenced him to the State penitentiary for a term of not less than one nor more than five years, to all of which the appellant in due time excepted and gave notice of appeal to this court.
At a former day of this term of this court we affirmed the judgment of the trial court and thereafter overruled the appellant's motion for rehearing. Since then appellant has filed an application for leave to file a second motion for rehearing which has caused us to examine further into the matter, at which time our attention was directed to the insufficiency of the indictment in charging an offense under the holding of this court in the case of Offield v. State,75 S.W.2d 882 (127 Tex.Crim. Rep.).
Therefore, we are impelled to set aside the affirmance of the judgment, withdraw the original opinion as well as the opinion on the motion for rehearing, reverse the judgment of the trial court and order the prosecution dismissed.
Judgment reversed and prosecution dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 375