The defendants were indicted for running a horse race along a public road. (See acts of 1873, p. 83.) One of the exceptions to the indictment is that it “ does not allege that defendants ran together.”

The court sustained the exceptions and set aside the *655indictment, and the district attorney gave notice of appeal and brought the case to this court, rather than have another indictment found, in compliance with opinion of the judge presiding, which seems now to be a prevailing practice.

The judgment of the court below is affirmed, under the case of Lewellen v. The State of Texas, 18 Tex., 538, and subsequent decisions of this court following it.

Affirmed.