Bell v. State, 256 S.W.2d 108

Bell v. State

256 S.W.2d 108 | Tex. Crim. App. | 1953

GRAVES, Presiding Judge.

Appellant was charged by complaint and information with unlawfully carrying a pistol on and about his person. He entered a plea of guilty to the offense of rudely displaying a pistol, under such information, and was by the court found guilty thereof and assessed a penalty of $25.00 and costs.

Under the provisions of Art. 695, C. C. P., in order to warrant a conviction for a lesser offense than that charged in the indictment or information it is necessary that every constituent element of the lesser offense be alleged, and that there be no repugnance between the constituent elements of the lesser offense and those of the offense charged. Tomlin v. State, 155 Tex. Cr. R. 207, 233 S. W. 2d 303.

There is no offense known as "rudely displaying a pistol,” but such may constitute a violation of the disturbing-the-peace statute (Art. 474, P. C.) when done in a manner calculated to disturb the peace.

*394Disturbing the peace is not an offense of a lesser degree under the rule above stated. We so held in Williams v. State, 149 Tex. Cr. R. 296, 194 S. W. 2d 94.

The judgment of the trial court is reversed and the cause remanded.