23 Tex. Ct. App. 637 | Tex. App. | 1887
At the last term of this 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. 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 the 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 mhde 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. The State. 39
Because the indictment is defective in substance, the judgment is reversed and the prosecution is dismissed.
Beversed and dismissed.