Shepherd

—Defendant has appealed from a judgment of conviction for offering to sell marijuana.

Defendant was indicted for a violation of section 11531, Health and Safety Code, charging that on December 22, 1960, he did “willfully, unlawfully and feloniously sell, furnish and give away a narcotic, to wit, marijuana.” The indictment was later amended by interlineation by the addition of the words “offer to” inserted before the word “sell” so that the charge as amended read that he “willfully, unlawfully and feloniously offered to sell, furnish and give away a narcotic, to wit, marijuana. ’ ’ It was also amended to add a prior conviction charging that defendant had previously been convicted of the crime of rape, a felony, in the State of Michigan and that he had served a term of imprisonment therefor in the state prison. Defendant’s motion under section 995 of the Penal Code to set aside the indictment on the ground that the amendment by interlineation stated a different offense from that found by the grand jury was denied. Defendant entered a plea of not guilty and denied the prior conviction. Upon a trial, the jury was unable to agree on a verdict and a mistrial was accordingly…