Countryman v. State

106 S.W. 181, 52 Tex. Crim. 23, 1907 Tex. Crim. App. LEXIS 250

Opinion

DAVIDSON, Presiding Judge.

Motion was made to quash the complaint and information because the same charged the offense in the alternative. The charging part of the complaint is that, “Kirk Countryman did unlawfully carry on and about his person knuckles made of metal, or some hard substance,” while the information.charges that appellant unlawfully carried “on or about his person, knuckles made of some hard substance.” The contention of appellant is correct.

Where a statute makes it a crime to do this or that, mentioning several things disjunctively, the indictment may, as a general rule, embrace the whole in a single count, but it must use the conjunction “and” where “or” occurs in the statute, else the pleading will be defective and uncertain. Hart v. State, 2 Texas Crim. App., 39. And to the same effect are Phillips v. State, 29 Texas, 226; Castello v. State, 36 Texas, 324; Potter v. State, 39 Texas, 388; State v. Randle, 41 Texas, 292; Lancaster v. State, 43 Texas, 519; Tompkins v. State, 4 Texas Crim. App., 161; Berliner v. State, 6 Texas Crim. App., 181; Copping v. State, 7 Texas Crim. App., 61; Venturio v. State, 37 Texas Crim. Rep., 653. And for further collation of authorities see sec. 372, White’s Annotated Code Criminal Procedure.

Because of this defect in the pleading pointed out, the judgment is reversed and the prosecution is ordered dismissed.

Henderson, Judge, absent.

Reversed and dismissed.