Lewellen v. State

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

The affidavit charged him with carrying on or about his person a pistol. The indictment is not sufficient, in fact is fatally defective. The wording of the complaint seems to follow the wording of the statute, and charges the offense in the alternative instead of conjunctively. 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 plead conjunctively, although they may be stated in the alternative or disjunctively in the statute. If not thus plead, the indictment will be fatally defective in matter of substance. In Tompkins v. State, 4 Texas Crim. App., 161, the indictment was quashed, because two separate offenses were joined with the word "or" instead of "and." See Hart v. State, 2 Texas Crim. App., 39; Copping v. State, 7 Texas Crim. App., 61; Roach v. State, 8 Texas Crim. App., 490; Johnson v. State, 9 Texas Crim. App., 249, and Wells v. State, 21 S.W. Rep., 370. In Davis v. State, 23 Texas Crim. App., 637, as well as in Walker v. State, 32 Tex. Crim. 517, the indictment was quashed where it stated the offense disjunctively. In Hart and Wells cases, supra, and in Burrows v. State, 17 S.W. Rep., 257; Parker v. State, 20 S.W. Rep., 707; Garza v. State, 22 S.W. Rep., 139, and Young v. State,37 Tex. Crim. 457; 41 S.W. Rep., 885, it was held that a recognizance which recited that appellant stood charged and was convicted of carrying on or about his person a pistol instead of on and about his person, etc., was insufficient and the appeal was dismissed in those cases because of an insufficient recognizance. Where a statute provides that an offense may be committed by one of various methods or by different means, if the pleader seeks to charge more than one of the means or methods stated, it is not permissible to charge in the alternative.

The complaint herein is, therefore, vicious, and must be held insufficient as a predicate for the prosecution. This being the case, the judgment will be reversed and the prosecution ordered dismissed, which is accordingly done

Reversed and dismissed.

ON REHEARING. December 9. 1908.