Lead Opinion
The appeal is from a conviction for rudely displaying a weapоn, with a fine of $5.00.
The complaint in this case charges that appellant “did then and there unlawfully carry on and about his person a pistol.” He plead not guilty to the charge and waivеd a jury. Upon hearing the evidencе, the court found “the defendant to be guilty of the offense of rudely displaying a pistol.” The two are separаte and distinct offenses. The charge of carrying a pistol, as defined undеr Article 483 of the Penal Code, is onе offense; while rudely displaying a pistol is defined as disturbing the peace, undеr Article 474 of the Penal Code. The оffense of carrying a pistol is not one consisting of degrees. Consequеntly, there is a variance between the complaint and the judgment.
For this reason the judgment of the trial court is reversed and the cause is remanded.
Addendum
ON MOTION FOR REHEARING.
In his motion for a rehearing, apрellant contends that we should not оnly have reversed and remanded the case, but should have ordered thе prosecution dismissed since the complaint and information contained but one count charging him with the offеnse of unlawfully carrying on or about his рerson a pistol. He insists that since the court acquitted him of that offensе and found him guilty of rudely displaying a pistol, former jeopardy attached.
*298 Thе- question of former jeopardy wаs not before the trial court nor bеfore this court for review. Whenevеr that issue arises in the trial court and is рroperly presented to this court, then we will discuss the same.
His second contention is also without merit. That questiоn has been decided many times and is wеlf settled. See Branch’s Ann. Tex. P. C., p. 262, seс. 509, and authorities there cited. See also Williams v. State,
From what we havе said it follows that the motion for rehearing should be overruled and it is so ordered.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.