Appellant renews his contention that the information was not sufficient to charge him with the offense defined and described in Art. 485 of our Penal Code, the specific point of his complaint being that said article penalizes any person whogoes into any social gathering, place where people are assembled, etc., and that it is not stated in the information that he went into, etc. We do not think the statute contemplates any special emphasis on the words italicized. The accused was sufficiently charged by an allegation that he had on his person a pistol at and in a place where there was a social gathering, and people were assembled, etc. Nor do we think it necessary that the information should have charged conjunctively the having and carrying of such pistol. It was sufficient to charge him with having same. It would have been sufficient to charge him with carrying same at said time and place. Where, as in this statute, the offense may be committed in two ways, namely, by having or carrying, etc., the charge is sufficiently laid in the indictment or information when the accused is charged with doing either of the things specified. The state might have properly charged him with having and carrying, but contented itself with naming only one of the statutory acts necessary to make him guilty. *Page 480
We have again reviewed the special charges submitted, in view of appellant's insistence that the court did not submit his affirmative defense, and his claim that such defense was embraced in one of said charges. In misdemeanor cases we hold that it is not enough to except to the charge, but that a special charge embodying the principle of law which the accused sought to have given to the jury, should have been requested. It is true that appellant contended in this case that he did not carry the pistol into the rooms of his mother's house in which the guests at the social gathering were assembled, but we find no special charge in the record seeking to have the jury told that if he did not so do he would not be guilty. The officer testified that he saw appellant in the room where the guests were assembled at said gathering and that he did not lose sight of appellant until the latter had gone into the kitchen where he was arrested and searched and the pistol found on him. Manifestly a special charge asking that the jury be told that they must find and believe beyond a reasonable doubt that the room where the officer took the pistol from the defendant was open to the public and used as a place for a social gathering, was an incorrect instruction as applied to the facts of this case, and presented a wholly different principle of law from that which is contended now to be the affirmative defensive theory, namely, that appellant had not carried the pistol into the rooms where the social gathering was in progress.
We are unable to find any error in the former opinion, and the motion for rehearing will be overruled.
Overruled.