Opinion
No. 33136.
March 15, 1961.
Appeal from the county court, Van Zandt County, G. D. Staton, J.
Clyde Elliott, Jr., Canton, for appellant.
J. S. Grisham, Criminal Dist. Atty., Canton, and Leon B. Douglas, State's Atty., Austin, for the State.
The conviction is for unlawfully carrying a pistol; the punishment, a fine of $100.
Both the complaint and the information charge that appellant did unlawfully carry 'on or about' his person a pistol.
Appellant challenges the sufficiency of the complaint and the information and points out that because the offense is alleged therein in the disjunctive the court erred in refusing to dismiss the prosecution.
A complaint and an information charging that the accused did carry on or about his person a pistol render such allegation uncertain and the complaint and the information defective because of the use of the word 'or' rather than the word 'and.'
An information alleging that the defendant did carry on 'or' about his person a pistol is bad, for the reason that it is uncertain in that the allegation is in the alternative. Branch's Ann.P.C., 2d Edition, Sec. 975, and cases collated therein; Jackson v. State, 165 Tex.Crim. R., 306 S.W.2d 899, and Scott v. State, 153 Tex.Crim. R., 221 S.W.2d 608.
Because of the insufficiency of the complaint and the information, the judgment is reversed and the prosecution ordered dismissed.
WOODLEY, P. J., absent.