Appellant was, upon her plea of guilty to the offense of an assault with a prohibited weapon, assessed a punishment of one year in the penitentiary.
Appellant sought a new trial, claiming, among other things, that she entered the plea of guilty under a mistake of fact and also that the trial court failed to appoint counsel to prepare and present for her an application for suspended sentence, as required by Article 776, C. C. P.
It is not necessary to determine the questions presented, for we have concluded that the indictment is fatally defective.
The indictment charges that appellant "did then and there while then and there unlawfully carrying on or about her person a pistol, with the said pistol did then and there wilfully commit an assault in and upon James Ward with said Pistol, and did then and there with said pistol shoot the said James Ward."
The offense created by Article 1151, P. C., under which this prosecution is brought, is the assault committed wilfully with a prohibited weapon while the weapon is being unlawfully carried. It follows, then, that to charge an offense under the statute, the indictment must allege facts showing that the weapon was unlawfully carried. The mere allegation that the weapon was unlawfully carried is not sufficient to meet this requirement. Such was the holding of this court in Denton v. State, 76 Tex.Crim. R., 172 S.W. 796, and Jordan v. State, 96 Tex.Crim. R., 255 S.W. 735.
An indictment which charges that the accused did carry on or about his person a pistol does not charge the unlawful *Page 572 carrying of a pistol, because the use of the word "or" rather than the word "and" renders such allegation uncertain and the indictment defective. Branch's P. C., Sec. 967; Evage v. State, 136 Tex.Crim. R., 125 S.W.2d 295; Jenkins v. State,143 Tex. Crim. 515, 159 S.W.2d 885.
It follows that the instant indictment, in charging that the pistol was carried "on or about her person" does not charge that the pistol was unlawfully carried, and is, therefore, fatally defective.
Because of the insufficiency of the indictment, the judgment is reversed and the prosecution ordered dismissed.
Opinion approved by the Court.
ON STATE'S MOTION FOR REHEARING.