The appellant was prosecuted, convicted and fined twenty-five dollars under an indictment the charging part of which reads as follows: “Did go into a public assembly, to wit, a public convention where persons were then and there assembled, and did then and there have *291and carry about his person a pistol.” The defendant moved the court to quash, which motion was sustained as to the public place or assembly, but overruled otherwise, and the indictment was held good for simply carrying a pistol, under article 318, Penal Code.
The defendant excepted, and assigns for error the action of the court in overruling his motion to quash. There was no error against defendant in this ruling. Strike from the indictment all that is said in regard to the public place or assembly, there still remains every element of the offense for which defendant was convicted, clearly charged in the indictment. The other may be treated as surplusage.
It is objected “that the indictment is defective because it does not allege that the pistol was unlawfully carried.’’ This is not necessary. The language of the statute is used, and this is not of that class of cases in which it is required to go beyond the terms of the law creating the offense. The case of Massey v. State, 4 Texas Ct. App. 580, does not support this assignment. We are of the opinion that the certificate of transfer to the County Court is sufficient.
The insufficiency of the evidence is urged for a reversal of the judgment. The jury passed upon this question; nor are we prepared to reverse their decision. As is frequently the case there were two theories; that of the State was found true by the jury, who heard the witnesses and saw their manner of testifying. The presiding judge was in a better position than we to pass upon this matter.
Finding no error which would warrant a reversal of the judgment, it is therefore affirmed.
Affirmed.