Lute v. State , 166 Tex. Crim. 357 ( 1958 )

314 S.W.2d 98 (1958)

John LUTE, Appellant,
v.
The STATE of Texas, Appellee.

No. 29892.

Court of Criminal Appeals of Texas.

June 11, 1958.

Baldwin & Goodwin, Beaumont, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DAVIDSON, Judge.

This is a conviction for the unlawful possession of a narcotic drug, to-wit, "Herion," with punishment assessed at five years and one day in the penitentiary.

The record is before us without a statement of facts.

In this court, appellant attacks the indictment for the reason that "Herion," as spelled and as set out therein, is not the same as "heroin", which is named in the narcotic drug act, Art. 725b, Sec. 1, subsection (12), Vernon's Ann.P.C. as a derivative of opium, a narcotic drug.

It is apparent that the spelling of the drug in the indictment is a typographical error.

But it is not necessary to dispose of the question for that reason. The indictment alleged that "Herion" was a narcotic drug, and for aught this record shows that allegation was sustained by the proof.

The judgment is affirmed.