¶1ON MOTION FOR REHEARING.
¶2Appellant again complains because the jurors were allowed to take with them in their deliberations the indictment herein, as shown by his Bill of Exception No. 3. It is shown by the qualification of said bill that upon the motion of the state, the portion of the indictment charging the use of a firearm, to-wit, a pistol, was waived by the state by an instrument in writing approved by the court; and the second count in the indictment charging such robbery was committed by the use of a sub-machine gun was dismissed in its entirety upon the motion of the district attorney, although such allegation of necessity remained in the indictment. The trial court then charged the jury, among other things, as follows:
“Gentlemen of the Jury: The second count of the indictment is withdrawn from your consideration, and this case is submitted to you only upon the first count of the indictment, and the verbiage set out in the first count of the inidctment as follows is hereby withdrawn from your consideration, ‘And then and there by using and exhibiting a firearm, towit, a pistol.’ ”
¶3*578Again, Article 674, C. C. P. provides that “the jury may take with them any writing used as evidence.” In the case of Ross v. State, 100 Tex. Cr. R. 295, 273 S. W. 582, it was held that the jury may take the indictment to the jury room, although it contains a count withdrawn from the case.
¶4The original opinion herein has already disposed of the questions again presented to us, and we adhere to its conclusions relative thereto.
¶5The motion for a rehearing will be overruled.