Brown v. State

• Decision Date: 22 May 1940
• Docket Number: No. 21075.,21075.
• Citation: 140 S.W.2d 449
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

140 S.W.2d 449

BROWN v. STATE.

No. 21075.

Court of Criminal Appeals of Texas.

May 22, 1940.

Appeal from District Court, Dallam County; Reese Tatum, Judge.

Henry J. Brown was convicted of driving an automobile while intoxicated, and he appeals.

Affirmed.

Art Schlofman, of Dalhart, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of driving an automobile while intoxicated, and by the jury fined $50 and sentenced to confinement in the county jail for forty-five days.

We find no statement of facts in the record. We do find a motion to quash the indictment because it is alleged that the same is duplicitous in that it charges the commission of two offenses in one count. We do not think the same subject to such objection. It charges in substance that appellant while intoxicated and while under the influence of intoxicating liquor drove and operated an automobile upon a public highway, etc. We gather that appellant's objection to this count in the indictment is based upon the use of the conjunctive "and" instead of the disjunctive "or", the latter of which being contained in Art. 802, P.C., Vernon's Ann.P. C. art. 802, denouncing this offense.

In Lewellen v. State, 54 Tex.Cr. R. 640, 114 S.W. 1179; Harris v. State, 58 Tex.Cr.R. 523, 126 S.W. 890; Canterberry v. State, Tex.Cr.App., 44 S.W. 522; Hunter v. State, 73 Tex.Cr.R. 459, 166 S. W. 164; Evage v. State, 136 Tex.Cr.R. 318, 125 S.W.2d 295, also Branch's Penal Code, p. 556, Sec. 967, and many other cases there cited, it has been held: "It is a well-settled rule, in regard to this character of pleading, that where the statute makes two or more distinct acts connected with the same transaction indictable, and the pleader undertakes to charge more than one of the means found in the statute, these must be pleaded, conjunctively, although they may be stated in the alternative or disjunctively in the statute." Lewellen v. State, supra.

We think the indictment presents a proper pleading.

We find no error presented in the record, and the judgment is affirmed.