
    Kirk Countryman v. The State.
    No. 3822.
    Decided October 30, 1907.
    Unlawfully Carrying Brass Knuckles—Information—Allegation in Alternative.
    Where the information charged the unlawful carrying of knuckles on or about defendant’s person, the same was insufficient; and the same should have used the conjunction “and” instead of “or.”
    Appeal from the County Court of Nacogdoches. Tried below before the Hon. C. D. Mims.
    Appeal from a conviction of unlawfully carrying knuckles made of metal; penalty, a fine of $100.
    The opinion states the case.
    
      Ingraham, Middlebrooh & Hodges, for appellant.
    
      F. J. McGord, Assistant Attorney-General, for the State.
   DAVIDSON, Presiding Judge.

Motion was made to quash the complaint and information because the same charged the offense in the alternative. The charging part of the complaint is that, “Kirk Countryman did unlawfully carry on and about his person knuckles made of metal, or some hard substance,” while the information.charges that appellant unlawfully carried “on or about his person, knuckles made of some hard substance.” The contention of appellant is correct.

Where a statute makes it a crime to do this or that, mentioning several things disjunctively, the indictment may, as a general rule, embrace the whole in a single count, but it must use the conjunction “and” where “or” occurs in the statute, else the pleading will be defective and uncertain. Hart v. State, 2 Texas Crim. App., 39. And to the same effect are Phillips v. State, 29 Texas, 226; Castello v. State, 36 Texas, 324; Potter v. State, 39 Texas, 388; State v. Randle, 41 Texas, 292; Lancaster v. State, 43 Texas, 519; Tompkins v. State, 4 Texas Crim. App., 161; Berliner v. State, 6 Texas Crim. App., 181; Copping v. State, 7 Texas Crim. App., 61; Venturio v. State, 37 Texas Crim. Rep., 653. And for further collation of authorities see sec. 372, White’s Annotated Code Criminal Procedure.

Because of this defect in the pleading pointed out, the judgment is reversed and the prosecution is ordered dismissed.

Henderson, Judge, absent.

Reversed and dismissed.  