
    No. 5097.
    B. F. Davis v. The State.
    1. Reinstatement oe Appeal—Practice in this Court.—At the last term of this court the appeal in this case was dismissed because the record failed to show notice of appeal in the court below. The certiorari to perfect the record, subsequently awarded, discloses that, in fact, notice of appeal was given in the court below. Held, sufficient to reinstate the appeal in this court.
    2. Pleading—Indictment.—When a statute makes it an offense to do one or another of several things, the several things may be charged together, but bis must be done conjunctively, using and instead of the word or 
      used in the statute. If the word or be used in such case, it renders the indictment uncertain. The indictment in this case charging that the pistol was carried “on or about the person," etc., is substantially defective.
    Appeal from the County Court of Runnels. Tried below before the Hon. C. H. Willingham, County Judge.
    The opinion states the nature of the case. The penalty assessed was a fine of twenty-five dollars.
    
      G. 0. Harris,' for the appellant.
    
      w. L. Davidson, Assistant Attorney General, for the State.
   Willson, Judge.

At the last term of this court at this place, this appeal was dismissed because the record failed to show that notice of appeal had been given, and entered upon the minutes of the court below. Appellant, thereafter, at the same term, filed a motion to reinstate the cause, alleging that notice of appeal had in fact been given and entered, and praying for a certiorari to perfect the record. His motion for certiorari was granted, and his motion for rehearing was continued to the present term. In response to the certiorari, a perfected record has been filed, which shows that notice of appeal was given, and was duly entered upon the minutes of the court below; wherefore the judgment dismissing the appeal is set aside, and the cause is reinstated upon the docket, and we will now dispose of it upon its merits.

It is alleged in the indictment that appellant “did unlawfully carry on or about his person a pistol.” His counsel insist that the disjunctive allegation is bad; that it renders the indictment uncertain; that, instead of the word or, the word and should have been used; and upon this supposed defect a motion in arrest of judgment was mhde which was overruled. We are of the opinion that the indictment, in the particular named, is substantially defective, and that the court erred in overruling the motion in arrest of judgment.

When a statute makes it an offense to do one or another of several things, the several things may be charged together, but this must be done conjunctively, using and instead of the word or used in the statute. If the word or be used in such case, it renders the indictment uncertain. (Phillips v. The State. 39 Texas, 226; Lancaster v. The State, 43 Texas, 519; Hart v. The State, 2 Texas Ct. App., 39; Tompkins v. The State, 4 Id., 161; Berliner v. The State, 6 Id., 181.)

Opinion delivered June 18, 1887.

Because the indictment is defective in substance, the judgment is reversed and the prosecution is dismissed.

Beversed and dismissed.  