Davis v. State

• Decision Date: 18 June 1887
• Citation: 5 S.W. 149
• Parties: DAVIS v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

5 S.W. 149

DAVIS v. STATE.¹

Court of Appeals of Texas.

June 18, 1887.

Appeal from county court, Runnels county.

The opinion states the nature of the case. The penalty assessed was a fine of $25.

C. O. Harris, for appellant. W. L. Davidson, Asst. Atty. Gen., for the State.

WILLSON, J.

At the last term of the court at this place this appeal was dismissed because the record failed to show that notice of appeal had been given, and entered upon the minutes of the court below. 2 S. W. Rep. 630. Appellant thereafter, at the same term, filed a motion to reinstate the cause, alleging that notice of appeal had in fact been given and entered, and praying for a certiorari to perfect the record. His motion for certiorari was granted, and his motion for rehearing was continued to the present term. In response to the certiorari, a perfected record has been filed, which shows that notice of appeal was given, and was duly entered upon the minutes of the court below. Wherefore the judgment dismissing the appeal is set aside, and the cause is reinstated upon the docket, and we will now dispose of it upon its merits.

It is alleged in the indictment, that appellant "did unlawfully carry on or about his person a pistol." His counsel insist that this disjunctive allegation is bad; that it renders the indictment uncertain; that, instead of the word "or," the word "and" should have been used; and upon this supposed defect a motion in arrest of judgment was made, which was overruled. We are of the opinion that the indictment, in the particular named, is substantially defective, and that the court erred in overruling the motion in arrest of judgment.

When a statute makes it an offense to do one or another of several things, the several things may be charged together; but this must be done conjunctively, using "and" instead of the word "or," used in the statute. If the word "or" be used in such case, it renders the indictment uncertain. Phillips v. State, 29 Tex. 226; Lancaster v. State, 43 Tex. 519; Hart v. State, 2 Tex. App. 39; Tompkins v. State, 4 Tex. App. 161; Berliner v. State, 6 Tex. App. 181.

Because the indictment is defective in substance, the judgment is reversed, and the prosecution is dismissed.

1. Reported by Messrs. Jackson & Jackson, official reporters of the Texas court of appeals.