Lomax v. State

• Decision Date: 10 November 1897
• Citation: 43 S.W. 92
• Parties: LOMAX v. STATE.
• Court: Texas Court of Criminal Appeals

43 S.W. 92

LOMAX v. STATE.

Court of Criminal Appeals of Texas.

November 10, 1897.

Appeal from Houston county court; E. Winfree, Judge.

Billie Lomax was convicted of an offense, and appeals. Reversed.

H. W. Moore, for appellant. Mann Trice, for the State.

DAVIDSON, J.

The information in this case charged that defendant "did then and there go into a ballroom and social party, and did then and there, unlawfully, have and carry about his person a pistol, against the peace and dignity of the state." Motion was made to quash this information because it failed to allege that people were assembled in said ballroom, and at said social party. Motion in arrest of judgment was also filed upon the same ground. These seem to have been overruled, and the court, in its charge, instructed the jury: First, if they believed, beyond a reasonable doubt, that the defendant carried the pistol on and about his person, they would convict him, and assess the punishment prescribed under the article denouncing that offense; and, second, if they believed that he carried it under the article prohibiting persons from going into ballrooms and social gatherings, with pistols, where people are gathered, for the purposes enumerated in that statute, then they would assess the punishment denounced against that offense. Under the first statute, the punishment would be not less than $25, nor more than $200, or by imprisonment in the county jail not less than 10, nor more than 30, days, or by both such fine and imprisonment. Under the other article, the punishment is by fine not less than $50, nor more than $500. The punishment assessed was a fine of $50. The information did not sufficiently allege the offense of carrying a pistol into a social gathering, but was sufficient to charge the offense of carrying about the person such pistol. See Rainey v. State, 8 Tex. App. 62; Pickett v. State, 10 Tex. App. 290. This is not a case wherein the information charges the different offenses in different counts, but it is a case where the information seeks to charge the more aggravated offense, but does it defectively; and under the Pickett Case, supra, these matters, by which the higher offense is sought to be charged, being defective, could be treated as surplusage, and there would still remain a good indictment for carrying the pistol on and about the person. That being true, the court should not have charged the jury with reference to the greater offense, because the information did not...