4 S.W.2d 559 | Tex. Crim. App. | 1927
Lead Opinion
Appellant was convicted under Art. 1151 of the Penal Code, the indictment charging that while unlawfully carrying on and about her person a pistol she unlawfully and wilfully made an assault upon Martha Weiland, penalty a fine of $75.00.
Under this indictment it devolved upon the state to show: (1) That appellant unlawfully assaulted the prosecuting witness with a pistol, and (2) that the pistol was then and there being unlawfully carried by appellant. Art. 1151, P. C.; Reneau v. State,
Art. 483, P. C., makes the carrying of a pistol unlawful, and Art. 484, P. C., excepts out of the operation of Art. 483, peace officers, the carrying of arms on one's own premises, persons traveling, and others. One whom the facts place clearly within any of the exceptions contained in Art. 484, P. C., cannot be prosecuted for the offense of unlawfully carrying a pistol, whatever may have been his intent in carrying it. Herein lies the distinction between cases like Moore v. State, 86 Tex.Crim. Rep., and the instant case. The evidence shows appellant within one of said exceptions, viz.: The carrying of a pistol on one's own premises. This being established, the state's case fails under the indictment herein.
It does not follow, of course, that the appellant has violated no law under the testimony of the state's witnesses, but the prosecution instituted being for an offense which demanded proof beyond a reasonable doubt of the unlawful carrying of a pistol, and this proof, in our opinion, being insufficient, the judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
In our original opinion we reluctantly followed the case of Ball v. State,
One of the jury questions in this case was whether or not appellant had the pistol at the time of the assault for an unlawful purpose. She had the right to the full use of the public road in question in the performance of any act or thing pertaining to the legitimate use and enjoyment of her premises and when so using it did not violate the pistol law in having with her such a weapon on the public road. It would, we think, however, be stating the rule too broadly and be provocative of too much mischief to say that she would have the right to carry prohibited weapons upon such a road irrespective of her intent and purpose in having same. Although a public road running through a homestead may be a part of the premises for the purpose of their legitimate use and enjoyment by the owner, the real right of possession to such road belongs in the public so as to exclude its use by such owner for an illegal purpose not in any way connected with the right of use and possession of the premises through which the road runs.
Sec. 23 of the Bill of Rights to our State Constitution provides:
"Every person shall have the right to keep and bear arms in the lawful defense of himself or the state, but the legislature shall have the power by law to regulate the wearing of arms with a view to prevent crime."
In response to and in furtherance of said permissive clause, the legislature, to prevent crime, has prohibited the carrying of certain arms with the exemptions set out in Art. 484 of the Penal Code. This class needs no further authority than the terms of the statute as a defense and having the right by law to carry a pistol, the purpose in carrying same is immaterial. There is, however, a second class, not defined by statute, which under our decision are exempted from the operation of the pistol law. Their right to carry a pistol may be said in a general way to be an incident of their constitutional right to *359 own, possess and bear arms. The following Texas cases illustrate this class:
A weapon may be lawfully carried to one's home, place of business, or to a repair shop for the purpose of repairing it. Mangum v. State,
"An act in violation of the letter but not of the spirit of the law is no offense."
See also Moore v. State, 86 Tex.Crim. Rep.; Elliott v. State,
In the second class of cases the right to carry a pistol cannot co-exist with an unlawful purpose and intent in carrying it. When the purpose for which it was being carried ceased, the legal right to carry it also ceased, while in the first class of cases mentioned above, such purpose could not be inquired into, if the facts conclusively showed that the person charged was within one of the exceptions of the statute.
We have concluded that the facts of this case place it within the second of said classes instead of the first, as formerly held.
The appellant had the undoubted right to go upon the public road with a pistol in making a journey to and from her separated tracts of land for the purpose of transacting business legitimately connected with the operation of her premises, but when her purpose was unlawful and had no legitimate connection with the business arising out of or incident to her possession and enjoyment of the premises, her right to have a pistol ceased and her act in carrying it thereupon became unlawful.
Errors of omission occurred in the court's main charge of which complaint is made. Special charges given at the request of appellant, we think, cured these errors. Their interest to the bench and bar do not justify the use of lengthy space in their discussion. The charges are, as a whole, if anything, perhaps more liberal than appellant was entitled to.
Believing that no error was committed, the judgment heretofore entered reversing and remanding this cause is hereby set *360 aside, the state's motion for rehearing is granted, and the judgment of the trial court is affirmed.
Rehearing granted State.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
That one may carry a pistol from a place where same is legitimately had, to another like place for some legitimate purpose, seems uniformly held; but this does not mean that such person may so carry such weapon idly, or merely for the sake of carrying it, or habitually, or for some unlawful purpose. Cassi v. State, 86 Tex.Crim. Rep.; Moore v. State,
We have carefully considered the able motion for rehearing, but are not satisfied that the Ball case, referred to in our former opinion, or the Ross case,
One can not idly or without lawful purpose carry a pistol from premise to premise across the property of others or of the public; and such carriage when proven is deemed unlawful, and the burden of proving that such carriage was lawful and within some of the exemptions, is upon the accused as appears in Bridgers v. State, 8 Tex.Crim. App. 145; Stilly v. State, 27 Tex.Crim. App. 445; Williams v. State, 74 Tex.Crim. Rep.; Blair v. State, 26 Tex.Crim. App. 387; Hunter v. State,
Being unable to agree with appellant's contention, the motion for rehearing is overruled.
Overruled.