
    The State v. William Green.
    Istdictbeext. Averment in the disjunctive, bad. A charge that the defendant “did carry a belt, or pocket pistol, or revolver,” is bad for uncertainty.
    FROM WILSON.
    Criminal Court. Wm. H. Williamson, J., presiding.
    Attorney General Heiskell, for the State,
    insisted that the word or was not in this ease an alternative conjunction, expressive of one of two things, but of two or more descriptions of the same thing. The statement iu the indictment is, that the defendant did carry a belt or pocket pistol, or revolver. These may all be different descriptions of the same revolver, which may be at the same time, a belt pistol or a pocket pistol. A heavy stick or bludgeon, is a double description.
    It may mean, however, that he carried one of two kinds of pistol, and it is said this is uncertainty. It is admitted that a charge of carrying a belt pistol, and a pocket pistol and a revolver, would be certain. Practically, the alternative is the most certain, for that binds the State to one of two things. The conjunctive has the form of certainty, but none of the reality. The State may, under it, prove: 1st, a belt pistol; 2d, a pocket pistol; 3d, a revolver; 4th, two pistols, belt and pocket; 5th, two, belt and revolver; 6th, two, pocket and revolver; 7th, three pistols, belt, pocket and revolver. This is “certainty in law,” which leaves the prisoner uncertain in fact which of seven alternatives is to be proved. The other is uncertainty, which leaves it at least certain that one of three things is to be proved. In civil pleading, you may by the same process, leave it utterly doubtful which of a million of trees a defendant cut, and yet you have legal certainty, because you falsely state that he cut them all; but if you state that he cut one of two certain trees, the uncertainty is too great to be tolerated. This false and absurd rule deserves to be discarded. If an alternative is allowed in fact, let it be done avowedly, not under cover of a lie. If a witness declares that he saw the defendant with a pistol, but did not see it well enough to distinguish which kind, that is sufficient certainty of proof, but the certainty required in pleading would require him to swear that it was all three.
    The Code allows the use of ordinary and concise language: 5114. Such degree of certainty as shall enable the court to pronounce judgment upon conviction: 5117. When the common law prescribes particular and technical language, it is sufficient to describe the offense according to the general rules laid down in this chapter: 5120. The means may be charged in the alternative: 5121.
    J. W. Phillips, for the defendant,
    cited Whiteside v. State, 4 Cold., 182; State v. Ailey, ante, p. 8; 1 Bishop Cr. Law, § 274, 803; Archb. Cr. Pr. and PL, p. 91, m. n. 1; lb., 88, m. n. 1; Peels v. State, 2 Hum., 84; and urged the Court not to tolerate laxity in pleading.
   NelsON, .T.,

delivered the opinion of the Court.

The presentment was intended to be framed upon the act of June 16, 3870, c. 13. It charges that the defendant “unlawfully and willfully did carry a belt or pocket pistol, or revolver,” he not being an officer, or policeman, &c., &c. The presentment was quashed, on motion, and the State appeals.

Notwithstanding the able and ingenious argument of the Attorney General, in support of the presentment, we hold that the charge is in the disjunctive, and, therefore, defective and insufficient, according to Whitesides v. The State, 4 Cold., 183. See, also, 1 Wat. Arch. Cr. Pl., 282, and notes, and 291, note 1, et seq.; 1 Chitty Cr. Law.

The reasons for the ancient strictness in indictments; are so lucidly stated in the authorities cited, that it would be a work of supererogation to repeat them. "While, in some respects, this strictness, in the language of Sir Matthew Hale, had “grown to be a blemish and inconvenience in the law and in the administration thereof,” it should never be forgotten that much of the certainty required in indictments arose during the protracted struggle for liberty, against prerogative, in England, and was the shield interposed by the judicial tribunals, for the protection of the citizen against wrong and oppression. The experience of the last few years should admonish us that the barriers erected by the wisdom of our ancestors for the protection of public and private liberty, can not be maintained with too much vigilance or determination.

Affirm the judgment. 
      
      
        In Handaman v. The State, Knoxville, Oct. 21, 1871, it was held, Nelson delivering the opinion of the Court, that this form of statement was not cured by the Code, 5122, providing that, “when an offense may be committed by different means, the means may be alleged in the same count in the alternative.” That here different offenses are charged in the alternative. That section was intended to provide that murder might be charged to have been committed by different means, as by blows, poison or strangulation; or with different weapons in the alternative; or that the pretences by which money was obtained, might be stated in like manner and for like cases.
     