
    HUNTER v. STATE.
    (No. 2978.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.)
    1. Weapons (§ 17*) — Defenses—Burden or PROOF.
    The burden was upon one charged with unlawfully carrying a pistol to establish the defense that he was at the time a civil officer engaged in the discharge of his duty, and had a reasonable fear of an unlawful attack upon his person, and that the danger was so imminent as not to permit the arrest of the threatening party, which circumstances Penal Code 1911, art. 476, provides shall relieve from liability for carrying a pistol, especially in view of article 52, requiring accused to establish the facts relied on to excuse or justify the prohibited act.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. § 17.]
    2. Criminal Law (§ 829) — Appeal—Harmless Errob — Instruction.
    Any error in refusing requested charges by accused, or in particular expressions in the charges given, was harmless, where the charges given were substantially correct upon every issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    8. Criminal Law (§ 1091) — Appeal—Bill or Exceptions — Improper Argument — Sufficiency.
    A bill of exceptions to improper argument by the district attorney was insufficient, where it did not state the objections made to the argument, or the circumstances under which it was made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    4. Indictment and Information (§ 72) — Disjunctive Allegations.
    The indictment, in a prosecution for unlawfully carrying a pistol, which alleged that accused did unlawfully carry a pistol on “or” about his person was fatally defective for using the disjunctive.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 195-199; Dec. Dig. § 72.] .
    Prendergast, P. J., dissenting in part.
    Appeal from Terry County Court; Geo. W. Neill, Judge.
    T. F. Hunter was convicted of unlawfully carrying a pistol, and appeals.
    Reversed, and case dismissed.
    John Davenport, of Wichita Falls, and T. F. Hunter, of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant appeals from a conviction for carrying a pistol, with a fine of $100 assessed — the lowest prescribed by law.

By the uncontradicted evidence for the state appellant is shown to have carried a pistol at the time and place charged in the indictment. This is not disputed. In addition, the appellant himself testified and swore that he carried the pistol at the time and place alleged in the indictment. So that, so far as this casé was concerned, it was unquestionably shown and not contested that appellant carried the pistol at the time and place alleged. His defense was that he was not guilty of violating the law at the time because, first, he was a civil officer engaged in the discharge of his duty, and, second, that he had reasonable ground for fearing an unlawful attack upon his person, and the danger was so imminent and threatening as not to admit the arrest of the party about to make such an attack upon legal process.

The court substantially, if not literally, told the jury, in accordance with the stat7 ute (article 475, P. O.), the offense; and also told them, as shown by article 476, P. C., that the preceding article did not apply in either, of the two events claimed by appellant as his defense. The charge of the court was not very artistically drawn; but it substantially and fully enough submitted these questions to the jury for a finding. The jury found all of them against appellant, and were justified by the evidence in so finding.

Under the statute and the many decisions of this court, the court’s charge, in effect, that the burden was upon appellant to establish his defense was correct. Besides, the article of the statute above noted, pertaining to this offense (art. 52, P. C.), prescribes: “On the trial of any criminal action, when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission.” Lewis v. State, 7 Tex. App. 567; Stilly v. State, 27 Tex. App. 445, 11 S. W. 458, 11 Am. St. Rep. 201; Skeen v. State, 34 Tex. Cr. R. 308, 30 S. W. 554; Blackwell v. State, 34 Tex. Cr. R. 476, 31 S. W. 380, and other cases unnecessary to cite.

Appellant has several complaints to different expressions of the court’s charge, and to the refusal of the court to give his special charges asked. Even if any of these matters were so raised as to authorize or require this court to pass thereon, they present no reversible error, because the charge of the court, as given, including one of appellant’s special charges given, presents substantially correctly every issue raised and necessary to be decided. ■

Appellant has one bill of exceptions to the argument made by the district attorney to the jury. The bill states that he excepted to the argument “and made various objections to the same.” What these objections were are not .stated nor shown in the bill. Nor are the circumstances under which, the claimed objectionable argument was made stated. No special charge is shown in the record to have been requested by appellant and refused for the jury to disregard the argument. ' The bill itself is insufficient to properly present the question, and- it shows no error. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; and Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and authorities there cited.

The most material, question in this case is appellant’s claim that the indictment charging him with this offense is fatally defective. After the necessary preliminary .allegations therein, it avers that appellant>in said county on January 29, 1913, “did unlawfully carry on or about his person a pistol;” appellant claiming that the averment that he carried "on or about” is fatally defective, that the indictment should have charged that he carried “on and about.” The Assistant Attorney General also contends as does appellant. Appellant cites Canterberry v. State, 44 S. W. 522; Lewellen v. State, 54 Tex. Cr. R. 640, 114 S. W. 1179; Harris v. State, 58 Tex. Cr. R. 523, 126 S. W. 890. Each of these cases sustain his contention. There may be others to the same effect. The question is: Are they right, and shall they be followed?

It was unquestionably the common-law rule that such an allegation — “on or about” —was bad, and an indictment or complaint and information so charging insufficient. Many decisions of this court prior to 1881 correctly so stated and held. Some of these are cited and noted in the three decisions above cited and relied upon by appellant. But by the act of March 26, 1881, c. 57, p. 60, our Legislature expressly enacted the reverse of this rule. Said act is now articles 460 to 476, inclusive, in our Code of Civil Procedure. The Legislature unquestionably by that act intended that the old rule of the common law, as shown by said articles, should no longer be the law of this state, but that act, where it changed such rule, should be the law of this state. There can be no question that the Legislature had the power and the authority to so enact, and this court,- and no other, can say it did not. The Legislatures of our state enact laws— not this court This court can neither properly enact a law nor repeal one. It is, should, and must be bound by the Acts of the Legislature when constitutionally enacted. As said by this court, through Judge Willson, in Leeper v. State, 29 Tex. App. 72, 14 S. W. 400, so we here say: “We regard it as the imperative duty of this court, and of all other courts of this state, in the trial and determination of causes, to be guided and controlled by the statutes of the state whenever there is a statute applicable to the question presented. Our observation is that many errors' have crept into the decisions of the courts of this state, especially in criminal cases, by following common-law rules and decisions of other states, overlooking our own statutes. These errors should be corrected whenever detected, and a strict adherence to statutes should be the rule governing courts in their decisions.”

The purpose of the said rule at common law was, as stated by text-book writers and the decisions of this court, that an accused had the right to know by the indictment with what offense he was charged, and, when the indictment charged in the alternative, he could not and did not know this. But it is álso the rule at common law that, when an offense may be committed in two or more ways, or by two or more means, an indictment is perfectly good which charges all of these things in the conjunctive, because thereby an accused is charged with each and every one of them, but that the state is entitled to a conviction when it proves either one of the various means or ways, and that the state does not have to prove but one, although it alleged many. Eor instance, in this case, under the old rule, appellant could have been charged by the indictment with carrying “on and about”; but the state was entitled to a conviction by proving either that he carried the pistol “on” or that he carried it “about” his person, and the state did not have to prove both that he carried it “on” and that he carried it “about” his person. Then, so far as the accused was concerned, he knew that under the statute he could be convicted if the state proved he carried the pistol either “on or about” his person, and he had to meet the proof of both contingencies just as he would have had if he had been charged with carrying it “on and about” his person. No more, no less.

Then let us see what our statutes clearly and unequivocally enact. Said article 475 is: “If any person * * * shall carry on or about his person * * * any pistol, * • * he shall be punished by a fine of not less than one hundred,” etc. Said act of 1881 (article 460, C. C. P.) is: “An indictment for any offense against the penal laws of this state shall be deemed sufficieht which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.” Article 469, O. O. P., is: “An indictment under the laws regulating the carrying of deadly weapons may charge that the defendant carried about his person a pistol, * * * without authority of law, without a further averment of a want of legal excuse or authority on his part.” Then article 473, C. C. P., which is section 14 of said act of 1881, is: “When the offense may he committed by different means, or with dif-ent intents, such means or intents may be alleged in the same count, in the alternative.” (Italics ours.) Article 9, P. C., is: “This Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects.” In neither of the above decisions relied upon by appellant is this statute even indirectly referred to. It seems to have been overlooked or ignored.

I have searched diligently and have been unable to find any decision of this court at any time since the enactment of said act of 1881 wherein it was held that said article 473 was not the law, or for any other reason invalid and inapplicable to this question. I therefore follow the plain and unequivocal enactment of the Legislature, and not said decisions relied upon by appellant, and hold that this indictment was perfectly valid. But the other members of this court do not agree with me and follow said decisions, and accordingly said indictment was bad, and in accordance with their holding this cause is reversed and dismissed.  