In Vincent v. State, 10 Texas Ct. App. 331, it was held that whilst it was incumbent upon the State to prove an offense not barred by limitation, still, when nothing in the evidence raises a doubt as to whether the prosecution was barred, there is no occasion for in-, structions from the court to the jury upon the subject. This disposes of the only objection urged by appellant to the charge of the court in the case before us.

Another error complained of is that the witnesses talked to each other about the case after being placed under the rule. This objection is presented in the affidavit of defendant to the motion for new trial, as follows, viz.: “that he is informed and believes that T. J. Goodwin heard the said witnesses talking about said cause as above stated; that T. J. Goodwin is .absent so that his affidavit cannot be procured.” This affidavit is entirely too indefinite and uncertain, in that it does not state who informed him, nor what the witnesses said about the case. When the rule is invoked a wide discretion is vested in the presiding judge, and the exercise of this discretion will not be revised on appeal unless an abuse of it to the prejudice of the defendant is made to appear. McMillan v. State, 7 Texas Ct. App. 142; Walling v. State, 7 Texas Ct. App. *34625; Davis v. State, 6 Texas Ct. App 196. As here shown, we cannot from the uncertainty and meagerness of the statement made in the affidavit say whether the court has or has not abused its discretion.

As to the verdict, the misspelling of the word “penitentiary” is upon a par with the spelling of the same word in the verdict in the case of McMillan v. State, 7 Texas Ct. App. 100, in which case it was held that misspelling does not vitiate a verdict when no doubt can be entertained as to the words intended or as to their meaning. See Clark’s Crim. Laws of Texas, pp. 532, 533, and note.

So far as the evidence adduced on the trial is concerned, we do not hesitate to say that, if correctly reported in the statement of facts, we cannot well see how the jury could have arrived at any other conclusion than guilt, if satisfied of its truth; and of this latter they were also the sole judges.

There is no error made apparent from the record, and the judgment is affirmed.

Affirmed.