
    TERRY v. STATE.
    (No. 10539.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1927.)
    1. Criminal law @=>1092(7), 1099(6) — Statement of facts and bills of exception, not filed or approved within 90 days after notice of appeal, could not be considered (Code Cr. Proc. 1925, art. 760).
    Court on appeal could, not consider statement of facts and bills of exception, where statement was filed more than 90 days after notice of appeal was given, and bills of exception were not shown to have been filed, but were approved by court more than 90 days after notice of appeal, in view of Code Cr. Proc. 1925, art. 760, providing for filing of statement and bills of exception within 90 days after notice of appeal.
    2. Indictment and information @=>125(29) — Information, charging aggravated assault by “Instrument or substance,” held not objectionable as charging one offense by different methods.
    Refusal to sustain motion to quash information charging aggravated assault with some hard instrument or substance, name of which was unknown, held proper, as words “instrument or substance” refer to same object and do not amount to allegations in alternative, charging one offense by different methods.
    
      Commissioners’ Decision.
    Appeal from Wise County Court; S. M. Ward, Judge. 1
    Join Terry was convicted of aggravated assault, and he appeals.
    Affirmed.
    W. R. Parker, of Fort Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeek, for the State.
   BAKER, J.

The appellant was convicted of an aggravated assault in the county court of Wise county, and his punishment assessed at a fine of $50 and 60 days in jail.

The attorneys-for this court move to strike out the statement of facts and bills of exception herein, because the statement of facts was filed more than 90 days after the notice of appeal was given, and the bills of exception are not shown by the record to have been filed at all, but were approved by the court more than 90 days after said notice of appeal was given. The record supports the contention made by the state’s attorneys, and, under article 760 of the C. C. P., this court is unauthorized to consider said statement of facts and bills of exception; and, for that reason, all the questions involving the admission and rejection of testimony pass out of the case.

However, the appellant complains of the refusal of the court to sustain his motion to quash the complaint and information herein because same, it is alleged, are in the alternative in charging that the appellant committed the alleged offense “with his fists and with some hard instrument or substance, the kind and name of which is unknown to affiant,” etc. The appellant contends that the word “and” should have been used instead of the word “or,” and that, on account of the failure to use same, the information and complaint are null and void. We are unable to agree with this contention and think the words “instrument or substance” refer to and mean the same object, by the use of two different words, and do not fall within the line of decisions forbidding allegations to be in the alternative by charging one offense by different methods. Thomas v. State, 18 Tex. App. 213; Hofheintz v. State, 45 Tex. Cr. R. 117, 74 S. W. 310; Hill v. State, on rehearing, 96 Tex. Cr. R. 364, 257 S. W. 262.

After a careful examination of the record, and finding no error therein, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PER CURIAM. 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.’ 
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