Scott v. State

221 S.W.2d 608, 153 Tex. Crim. 492, 1949 Tex. Crim. App. LEXIS 1241

• Court: Court of Criminal Appeals of Texas
• Decided: June 22, 1949
• Docket: No. 24428
• Status: Published

Opinion

BEAUCHAMP, Judge.

The appeal is from a conviction for carrying a pistol, with a penalty of 30 days in jail.

Both the complaint and information charge that appellant “* * * did then and there unlawfully have on or about his person a pistol.” The appeal attacks the sufficiency of the complaint and information because of the use of the disjunctive conjunction “or” instead of “and.”

This question has been passed upon so many times by this court that it would seem unnecessary to cite authorities to sustain appellant’s contention. We said in Wilson v. State, 209 S. W. 2d 598:

“An indictment which charges that the accused did carry on or about his person a pistol does not charge the unlawful carrying of a pistol, because the use of the word ‘or’ rather than the word ‘and’ renders such allegation uncertain and the indictment defective. Branch’s P. C., Sec. 967; Evage v. State, 136 Tex. Cr. R. 318, 125 S. W. 2d 295; Jenkins v. State, 143 Tex. Cr. R. 515, 159 S. W. 2d 885.”

The judgment of the trial court is reversed and the prosecution is ordered dismissed.