
    HENDRIX v. STATE.
    (No. 10469.)
    Court of Criminal Appeals of Texas.
    June 8, 1927.
    1. Criminal law <&wkey;l044, 1050 — Attack on sufficiency of indictment should be made by’ motion or exception in trial court.
    An attack on the sufficiency of an indictment, because it uses the disjunctive “or” instead of the conjunctive “and,” should be made by motion or exception in the trial court.
    2. Criminal law <&wkey;>ll33 — Attack on sufficiency of indictment for using “or” instead of “and,” first made on motion for rehearing on appeal, comes too late for consideration.
    Attack on sufficiency of indictment for using the disjunctive “or” instead of the conjunctive “and,” which is first made on the motion for rehearing on appeal, comes too late, and will not be considered.
    Appeal from Garza County Court; J. M. Boren, Judge.
    On motion'for rehearing.
    Motion stricken out.
    For former opinion, see 288 S. W. 1116.
    Lockhart & Garrard, of Lubbock, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Kobt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

Notice of appeal was given February 5, 1926. The record was filed in this court August 11, 1926, and the judgment affirmed on December 8, 1926. On March 7, 1927, motion for rehearing was filed here, which, for the first time, attacks the sufficiency of the indictment because it uses the disjunctive “or” instead of the conjunctive “and.” The precedents are numerous to the effect that the conjunctive should be use'd. Apparently the attack, however, should be made by motion or exception in the trial court. See Lewellen v. State, 54 Tex. Cr. R. 640, 114 S. W. 1179. The writer thinks this should be the rule. However, the point raised in the motion for rehearing comes too late for consideration.

The motion, therefore, will be stricken out.  