
    Adolph Fromme v. The State.
    No. 5179.
    Decided May 28, 1919.
    Disloyalty Act—Indictment—Statutes Construed—Words and Phrases.
    The word or, in section one of the Act of the Fourth Called Session of the Thirty-fifth Legislature, should be read and, and each element of the offense must be charged conjunctively, and where this was not done in the indictment, the same is fatally defective and the cause must be dismissed. Following Ex parte Meckel, recently decided.
    Appeal from the District Court of Victoria.—Tried below before the Hon. Jno. M. Green.
    Appeal from a conviction of a violation of the Disloyalty Act; penalty, ten years imprisonment in the penitentiary.
    The opinion states the case.
    
      Meek & Kahn, for appellant.
    
      E. A. Berry, Assistant Attorney General, for the State.
   LATTIMORE, Judge.

Appellant was given ten years in the District Court of Victoria County for a violation of the Disloyalty Act. See p. 12, Acts of the Fourth Called Session of the Thirty-fifth Legislature.

Said Act in Section 1 forbids the use of language in the presence and hearing of another person, of and concerning the United States of America, etc., which language is disloyal to the United States of America, or abusive in character, and calculated to bring into disrepute the United States of America, etc., or is of such nature as to be reasonably calculated to provoke a breach of the peace, etc.

An inspection of the caption of said Act, also Section 2 of same, and Section 8 thereof, as well as the context of Section 1, has satisfied this court that the last word or, supra, was intended to be and should be read and, and same has heretofore been so held by us. See Ex parte Meckel, decided at this term. So construing the law, each element of the offense, under well settled rules of construction, must he charged conjunctively. The third count of the indictment is the only one which charges that the alleged utterances of appellant were of such nature as to he reasonably calculated to provoke a breach of the peace, and in said count it is nowhere alleged that the language used was disloyal to the United States of America and abusive in character, and calculated to bring into disrepute the United States of America, etc., and of such nature as to he reasonably calculated to provoke a breach of the peace.

The indictment thus omitting necessary allegations is fatally defective, and the cause is reversed and dismissed.

Reversed and dismissed.  