Harris v. State

126 S.W. 890, 58 Tex. Crim. 523, 1910 Tex. Crim. App. LEXIS 171

Opinions

DAVIDSOn, Presiding Judge.

Appellant was convicted of unlawfully carrying a pistol, his punishment being assessed at a fine of $100.

The charging part of the information is as follows: “. . . did then and there unlawfully carry on or about his person a pistol, against the peace and dignity of the State.” This information is subject to demurrer in that it charges the offense in the alternative “on or about.” The allegation could have been made and should have been made by the use of the conjunctive “and” instead of the disjunctive “or.” This character of pleading has been held vicious since the case of Hart v. State, 2 Texas Crim. App., 39. See also Tompkins v. State, 4 Texas Crim. App., 161; Burrows v. State, 17 S. W. Rep., 257; Parker v. State, 20 S. W. Rep., 707; Wells v. State, 21 S. W. Rep., 370; Young v. State, 42 S. W. Rep., 564; Walker v. State, 32 Texas Crim. Rep., 517; Davis v. State, 23 Texas Crim. App., 637. These are a sufficient number of cases to indicate the unbroken line of authority.

The judgment is reversed and the cause is remanded.

Reversed and remanded.