allegation in the indictment that the defendant “acted together” with another in the commission of the offense is not a descriptive allegation, is surplusage, and it was not essential that it should be proved by the evidence. There was no error in admitting testimony proving that defendant acted alone in the commission of the offense, nor in refusing the special charge requested by the defendant as to variance between allegation and proof. Watson v. The State, 28 Texas Ct. Ápp., 34.
By the charge of the court the jury was instructed that the term “ wilful” signified “ without reasonable ground for believing the act to be lawful, or a reckless disregard of the rights of others.” We think this instruction substantially correct and sufficient. Loyd v. The State, 19 Texas Ct. App., 321.
It was error perhaps to give the instruction requested by the State, but the defendant failed to seek a correction of the error by requesting a proper instruction, and the error not being fundamental does not constitute reversible error. Loyd v. The State, supra.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.