The opinion of the court was delivered May 3d, 1886.

The learned judge committed no error in arresting the judgment sought to be entered on the second count of the indictment. The defendant was acquitted on the only valid count in the indictment under the 137th section of the Penal Code. That count correctly charged the act to be a felony. The other count cannot be sustained under section 138, as it was not framed under that section. It avers a fact not provided for in that section, but in conflict therewith. As it does not charge the act to have been done feloniously, it cannot be sustained under section 137.

Judgment affirmed.