The indictment reads thus:
"In the Name and By the Authority of the State of Texas:
The Grand Jurors, duly selected, organized and impanelled as such for the County of Morris, State of Texas, at the April Term, 1930, of the District Court for said County, upon their oaths, present in and to said Court, that on or about the 11th day of February, A.D., 1930, anterior to the presentment of this indictment, in the County and State aforesaid, Hillis Allen did then and there unlawfully with malice aforethought, in and upon Edna Hiner, make and commit an assault by then and there shooting the said Edna Hiner with a shotgun, with the intent to then and there kill and murder the said Edna Hiner.The said Hillis Allen, at the time he then and there so shotthe said Edna Hiner, shot into the private residence of thesaid Edna Hiner, against the peace and the dignity of theState."
The language italicized is regarded as surplusage. It does not charge an offense of itself and may be omitted without impairment of the indictment. See Ency. of Law Procedure, Vol. 22, p. 367; State v. Elliott, 14 Tex. Rep. 423; Rocha v. State, 43 Tex.Crim. R.; Hampton v. State, 5 Tex. Ct. App. 463; Ency. of Law Proc., Vol. 22, p. 369; Gordon v. State, 2 Tex. Ct. App. 154.
The motion for rehearing is overruled.
Overruled.
HAWKINS, J., absent.