Mosley v. State

GRAVES, Judge.

Appellant was tried before the county judge charged with unlawfully carrying a pistol, and by the court fined the sum of $100.00.

The complaint charging this offense is as follows: “I, H. H. Whatley, do solemnly swear that I have reasons to believe, and do believe, that Alvin Mosley, on or about the 14th day of October, 1939, in the County of Harrison, and State of Texas, and before the making and filing of this complaint, did then and there unlawfully on or about his person carry a pistol against the peace and dignity of the State.”

The information follows the complaint in that it is there charged that appellant did carry on or about his person a pistol. It will be noted that this offense is charged in the disjunctive, and such allegation has often been held bad because of such fact. The allegation should have charged this offense in the conjunctive, that is, the word “and” should have been used in place of the word “or,” and failing to do so the complaint and information are bad for uncertainty. We quote from Branch’s Penal Code, p. 556, as follows: “An indictment or information alleging that defendant did carry on ‘or’ about his person a pistol is bad for uncertainty, because the allegation is in the alternative. Davis v. State, 23 Texas Crim. App. 638, 5 S. W. 149 ; Canterberry v. State, 44 S. W. 522 ; Countryman v. State, 52 Texas Crim. Rep. 23 , 105 S. W. 181 ; Lewellen v. State, 54 Texas Crim. Rep. 641 , 114 S. W. 1179 ; Harris v. State, 58 Texas Crim. Rep. 523 , 126 S. W. 890 ; Hunter v. State, 166 S. W. 164 .”

The judgment is reversed and the prosecution ordered dismissed.