
    YOUNG v. STATE.
    (No. 5766.)
    (Court of Criminal Appeals of Texas.
    April 7, 1920.
    On Motion for Rehearing, June 16, 1920.)
    1. Bail ¡&wkey;65 — Recognizance in misdemeanor appeal must state punishment.
    The recognizance for appeal in a case of misdemeanor required by Code Cr. Proc. 1911, art. 903, must state the punishment.
    2. Bail &wkey;>65 — Recognizance stating punishment as fine of “one hundred” is insufficient.
    A recognizance for appeal from conviction of a misdemeanor which states the punishment merely as a fine of “one hundred” is insufficient, and the appeal must be dismissed.
    On Motion for Rehearing.
    3. Criminal law <&wkey;200(2) — Conviction of assault no bar to prosecution for unlawfully carrying a pistol.
    A conviction for assault, under an indictment charging that defendant, while unlawfully carrying, or having about his person a pistol, did make an assault, etc., is not a bar to a subsequent prosecution for unlawfully carrying a pistol, for the two offenses are entirely distinct, and averments as to unlawfully carrying a pistol might be rejected as surplusage, partie-' ularly as Vernon’s Ann. Pen. Code 1916, art. 1024a, ^expressly provides for punishment of an assault while unlawfully carrying a pistol.
    Appeal from Aransas County Court; E. Stevens, Judge.
    Henry Young was convicted of a misdemeanor, and he appeals.
    Affirmed.
    Gordon Gibson, of Rockport, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

By motion the Assistant Attorney General suggests that this court has not acquired jurisdiction to decide this ease on its merits, for the reason that a recognizance in substantial compliance with the statute is wanting.

On appeal to this court the statute (article 903, Code of Crim. Procedure) requires that the recognizance in a case of misdemeanor shall state the punishment; at least it has been construed in a uniform line of decisions to he incomplete if it fails to state the punishment. Watson v. State, 62 Tex. Cr. R. 620, 138 S. W. 611; White v. State, 68 Tex. Cr. R. 147, 151 S. W. 826; Goss v. State, 202 S. W. 956; Hayes v. State, 204 S. W. 330.

In the instant case the judgment shows that the fine entered against appellant was $100. In the recognizance the fine is described as “one hundred.” It is essential that the recognizance comply with the law; otherwise it would be inadequate to support a judgment forfeiting bail.

Under the facts and the law, we are constrained to sustain the motion of the state, and the appeal is accordingly dismissed.

On Motion for Rehearing.

The order heretofore entered, dismissing the appeal, is set aside upon the motion of appellant, accompanied by a proper recognizance. On the merits of the case the conviction is for unlawfully carrying a pistol on and about his person. He was previously convicted of an assault in an indictment charging that he did “then and there, while unlawfully carrying on and about his person a pistol, with the said pistol in and upon Willie Bell make an assault.” The occasion upon which the assault .was made was the same as that upon which the present conviction is had. The contention is urged that the conviction for the assault bars this prosecution for unlawfully carrying a pistol. The indictment in the assault case charged the offense awkwardly, and included therein surplusage; that is, “while unlawfully carrying on' and about his person a pistol” was not necessary. The indictment, however, we think, did not charge the appellant with the 'offense of unlawfully carrying a pistol, but in describing the occasion charges with unnecessary particularity that it was done while he was unlawfully carrying one. The offenses are different, punished with different penalties, and that of unlawfully carrying a pistol is not included in the statutory offense of an assault. An assault may be made-with a pistol unlawfully carried. We have a statute expressly so declaring. See Vernon’s Texas Grim. Statutes, vol. 1, art. 1024a.

The case of Nichols v. State, 37 Tex. Cr. R. 616, 40 S. W. 502, was one in which the prosecution was for unlawfully carrying a pistol. The plea of former conviction for rudely displaying a pistol was stricken out, and the ruling sustained. So in Burns v. State, 36 Tex. Cr. R. 606, 38 S. W. 204, the propriety of a double conviction was recognized, where one was charged with unlawfully carrying a pistol, and also charged on the same occasion with. carrying it within a prohibited distance of a polling place during an election. In Woodroe’s Case, 50 Tex. Cr. R. 212, 96 S. W. 30, the ruling was that a plea of former acquittal of an assault with intent to murder was not available in bar of a prosecution for unlawfully carrying a pistol upon the same occasion. In Ford’s Case, 56 S. W. 918, the plea of former conviction charged that the appellant had been “convicted of an assault with intent to murder, * * * and that the carrying of the pistol was a part of this transaction; that is, he had the pistol, and used it in said assault.” This plea as a bar to the prosecution for carrying the pistol was rejected.

Our attention has been drawn to no authorities supporting the view of appellant. Those we have cited we regard as analogous, and in our judgment the reasons expressed in them, controlling their rendition, support the ruling of the trial court.

The former judgment dismissing the appeal is set aside, the motion for rehearing granted, and the judgment affirmed. 
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