*1 y. The 1910.} State. For defendant. of the credibility
you pass upon properly al as to other other witnesses the testimony can consider of for any pur law local of the option violations leged of the the intent may pass as enable except pose and is tried.” is accused being in which she defendant as to the case witness should given by the evidence The question objected nor court have given have been should the permitted, a of the authorities full review all of. On above complained said: we of Merriwether in a legal that charges rule to preferred “We understand the be moral tur crime which imply convictions of manner,, certainly of a as affecting credibility are in evidence receivable pitude, think, has not applied, we witness or a but this rule to convictions which do in respect and should not be applied or such as are felony, moral or of the grade involve obliquity moral law involving turpitude.” not of the class that the recognizes permitting questions action think asked, both charge given, be taken in connection and hurtful. erroneous an- likely the other raised are not occur on questions
Some re- trial, the matter referred we would not except other think, case, in view of the but we nature verse tlie fact, and the substantial contradiction of the evi- close dence, that a the circumstances not in ought conviction justice under to stand. reversed and the cause remanded. judgment
Reversed and remanded. Ferd Roberts 681.
No. Decided June 1910. Affirmed Rehearing and Case October Granted 1910. Recognizance—Misdemeanor—Practice —Carrying Appeal. 1. Pistol — Where, upon appeal unlawfully carrying pistol, a the recognizance appellant to recite was convicted of a misdemeanor simply failed but pistol, insufficient; a that he was convicted the same was stated recognizance law, filed a as the new in accordance inasmuch appeal is reinstated. —Same—Charge Repairing Pistol. Court — Where, upon pistol, a unlawfully trial the evidence showed that to a certain went house to and claimed that the defendant shop, carrying it thereafter he turned aside from his residence and journey went to exhibited his and the court proper charge to the jury, there was no error submitted issue instruction, and the will not refusing requested a similar conviction be disturbed. —Same—Argument Response to Defendant’s Counsel. Counsel — Where, unlawfully carrying upon appeal conviction the remarks of the exceptions accepted by bill of showed Beports. State’s counsel were reply appellant’s suggestion that the State had not *2 brought character, impeach witnesses to there was no reversible error. Same—Sufficiency of the Evidence. 4.— Where, upon trial of unlawfully carrying a the evidence showed that alleged pistol was out of and defendant taking it to a blacksmith repair, do,' which he had a entering but violated the law by private premises people other and there displaying the conviction " was sustained.
Appeal the County Court of Busk. Tried below before the Hon. S. J. Hendrick. Appeal from a conviction of a unlawfully carrying pistol; penalty,
a fine of $100. states the case. W. J. McDavid and Jas. Y. Gray, appellant question . On refusal of defendant’s special instructions: State, 33 Ratigan v. 301; Rep., Campbell State, v. 28 Texas Crim. App., 44; State, Foster v. 28 Texas Crim. 45, 11 Rep., S. W. Rep., On State counsel’s State, v. 49 argument: Jenkins Texas 457, Crim. 93 Rep., 726; S. W. Rep., State, Benson v. 56 Texas Crim. 52, 118 Rep., S. W. 1049; Rep., Powell v. 70 W. S. 218; Rep., Rutherford v. State, 100; 67 S. W. v. Rep., Baughman State, 49 166; Crim. 90 Rep., S. W. Coleman Rep., State, 49 Texas Crim. Rep., S. W. Smith S. W. John A. Mobley, Attorney-General, Assistant for the State. Presiding DAVIDSON, Judge Appellant convicted nf vio- . lating law. The Assistant Attorney-General files motion to dismiss the appeal want of a legal sufficient recognizance. It recites defendant has been convicted in this “for cause a pistol and his punishment $100, assessed at a fine of fully more appears by the judgment entered,” of conviction duly etc. It is urged recognizance is insufficient does because it recite, as required in the form by the prescribed Legislature, “convicted of a misdemeanor.” We find the deficient in recognizance is mentioned; respect further to be noted that the offense stated in the “for recognizance is carry- a ing pistol.” This does constitute a violation of the law as has been held in many cases heretofore by decided A court. party must on.his person, about his or in person, other manner by statute. prohibited The mere statement the accused carried a pistol not constitute an does offense. sustained,
The motion of the Assistant Attorney-General is dismissed. appeal
Dismissed. v. The Presiding for un- was convicted DAVIDSON, Judge Appellant . the last During on and about Ms lawfully person. want of dismissed for herein was the appeal term has In with the statute recognizance. compliance sufficient re- the case be the request filed a sufficient recognizance find the its merits. instated the docket tried upon the statute. in accordance with the terms recognizance the record. reinstated to be tried therefore, discloses An of facts that appellant, of the statement inspection house of some negroes during holidays, Christmas them, who drinking. One witness, Tiny disturbance at house
cursing creating boy yard and another came into Wasson. Appellant *3 from and were, pulled pistol had with him negroes appellant witness, Tiny on waving it drew it the pocket began on at could Wasson, her the that she informing impose time house, this witness Sanders was Sweety Wasson. Will the before he him take the from defendant to upon pistol loaded, was pistol containing hurt which he did. The somebody, she him to take the one ball. When her husband returned told pistol he Wasson was off, says Sweety which did. She that shoot drunk, her so as cold water and she was clothes unfastening pour sober, her when she was on her for getting the purpose and Annie took her from the away appellant able Burnett further the Sweety testified that Wasson was sister She premises. husband, Wasson; name her was Johnnie that defendant whose witness; that had his out and was with the interfering pistol color, own and said was with her own told him she color. testified he was the occasion when present Will Sanders with where were and both boy another came him he house; that in sitting Tiny was the that Wasson called drinking; someone; to take before he hurt upon pistol appellant him from hand, out with that and saw in his appellant pistol he went him and few away took moments afterwards returned it. Wasson, first testified Johnnie husband that when he told occurrence, returned home wife him that Will defendant; loaded, had taken pistol Sanders that it was that off; and she wanted him to shoot it was afraid some of the she hurt; that and handle get trigger children were rusty that back, hard would shoot he pull pistol all that right; out the pistol; shot one ball that in pistol might rusty, it seemed to be bad but that as shape, as he fired pistol do; that the told him to hammer would stand all when wife cocked; that it, back and nothing the matter with pulled in he could see notMng wrong fact with the pistol except LX. Vol. Grim.—8. Reports. 60 substance,
fact hard to unbreech. above that State’s case.
Appellant introduced evidence the effect that Sam white had borrowed his 1908 before this man, year pistol occurred, Christmas, 1909; trouble the deceased Wasson had negroes some land which to given community schoolhouse, build if it was aban understanding doned for such it was revert with the purpose him, together he abandoned and moved improvements; prem ises; Morris; he had his servant ICate living that Wasson had seen in the town Henderson and talked him about trouble with these anticipated negroes regard schoolhouse, and had to lend him his agreed to take to his home for woman, had sent the protection, Morris, Kate after had pistol, who it and carried it gotten Wasson. it remained there That until when morning he was seen house of with it at the Johnnie That Tiny Wasson. he had seen Kate Morris to the matter and her regard told he wanted and take town and have it as it was out of condition. That on this he went particular morning Henderson, and started premises, got to the town which a distance of seven miles. near about Passing these negroes were heard confusion and drinking he noise into the that he yard; went otherwise he would not . That was also gone. companion He drinking does not waved deny having *4 directly by_ witness, testified the but said he had it his and jumper pocket, seen there by and witnesses, that Will Sanders took That did pistol. the he Wasson away not take from the place disturbance. He also of introduced evidence himself and through other witnesses of the fact that he was en route to the town and Henderson, was' carrying says the he for pistol as the purpose having repaired; that was rusty and would not shoot. The introduced State evidence in officers, Hale, rebuttal Pool and to the two effect that Pool got turned pistol Hale, and it over to the -sheriff. Hale testified rusty unbreech, 'and pistol hard to otherwise condition; that shooting hammer would when cocked, stand that it was in shooting condition. This is a sufficient statement of to bring the facts review the raised. questions 1. The court charged the jury regard to defensive appellant’s matter as follows: “You are further instructed as of this law case, that if the defendant had old man loaned his to Wasson pistol and the at pistol the house of that Ferd Wasson, Roberts, would have the under the law this State to to right home, former home now Kate Morris’ get pistol and take Henderson to have the said to same pistol repaired, v. The State. so be- and if law, you defendant would not violate in so doing find defendant you guilty. lieve will defendant our laws the that under “You are further instructed house and at a private not have the or right authority stop to taken and have the pistol in his hands display pistol house leave at the private from the same person to way on his then proceed stopped displayed pistol said not he defendant, would He, Henderson said without pistol. pistol or under our protected excused laws or same shop repaired.” town charge that said to this on the ground Appellant excepted an is altogether
“does the law case embrace governing follow- and then tequested innovation on modern jurisprudence,” ing special charge: that
“You are further instructed as the law herein that if believe from the in this case you further believe case, owned mentioned in this and you the pistol pos- evidence that Kate Morris, procured the year defendant at his home during session of the same his, of one Wasson at instance and Sam request Wasson’s, benefit, said Kate Morris carried use that on or about house same there -until said to her pistol kept 25, 1909, and defendant went the time of December the same carry said Morris to pistol house of Kate said get and that said de- repaired, or to have the same place home and was fendant did at time place get' taken off or town to have it when it was same home repaired, will find defendant not guilty. then person, herein it is the law of this “You are instructed State from the any right place pur- legal has person same any having chase home has a any person legal are further instructed that any belongs or other place residence law.” violating and take the home without same jiim are of was reserved. We This was refused and exception law sufficiently charges applicable the court authority Stilly App., under the *5 and Brent v. Ratigan had 411, 123 593. That S. W. deceased his of the Wasson -to the house right it to some convenient gun out of if it was pistol, under to be our deci questioned not and have it repaired, smith of the court the were charge jury as we understand sions, not him the to turn aside give right would instructed, this but so residence of other purpose, his journey and exhibit under premises their and invade parties And if the believed the State’s jury cited. above authorities Reports. 60 that he went home of where were they exhibited his on or had it were authorized they premises, to return the verdict which did return. of the court, while not happily fairly matter, this expressed, submits necessary it not by to give charge requested appellant.
2. There is another bill of the remarks record to exceptions of the county attorney. county The bill narrates that Mr. Strong, in attorney, lan- made of the closing argument, following use “The guage: why counsel ask I did not witnesses bring defendant’s here in court and contradict or I will this defendant. impeach tell you do, what I will jury; I am to make gentlemen willing an issue of the defendant’s character and I will show reputation what one better it no knows it than the defendant himself, counsel, in who have been him the courts defending for for many years objec- violations of the law.” The grounds tion urged were that was no to the im- there pertaining defendant; of the bad peachment or character of the reputation for, were uncalled remarks were not made in comment introduced and upon any testimony highly prejudicial. were bill with the “Counsel approves following qualification: for commented the State argument jury not witnesses to bringing County contradict defendant. impeach attorney not reply defendant well State can knows defendant’s I am put issue before reputation jury, though make an issue of willing, gentlemen jury, defendant’s char- acter and and I will is. show what one reputation, No better than defendant himself.” The bill knows it was accepted we no this are qualification, qualified opinion the county attorney such in the remarks of requires error us the county The remarks of judgment. attorney reverse the the State did not wit- reply appellant’s suggestion bring or character. reputation impeach appellant’s Having brought nesses to to us matter out in argument occurs county the matter had been opened up were not sufficiently remarks erroneous to re- attorney’s answering been alluded to and Had commented on in a reversal. quire remarks of the county appellant, attorney argument are, therefore, out of clearly place. reason. to reverse required we are the evidence to show sufficiently stated that under 3. We matter, under the defendant’s, perhaps view State’s by the evidence. justified Appellant had jury verdict to take repair, out convenient if his right, violated the law when he went and have people trouble occurred premises the private where he vogue, disturbance exhibited and where and under no on the place had He pistol. *6 117 v. The State. Holland in violation above cited we are of opinion authorities of our statute. is affirmed. record, judgment reversible error in no
Finding Affirmed. v. The Ben Holland October 1910. No. Decided 728. Chastity. Reputation Rape of Prosecutrix for 1.—Assault to —Evidence—General Where, rape, with intent defendant on the upon trial of assault prosecutrix chastity, there witness assailed stand the character of general her testimony supporting to introduce permitting
no error in the State State, Rep., v. Texas 443. reputation chastity. Following 54 Crim. Warren and Wife—Practice. 3.—Same—Conduct State’s Counsel—Husband Where, State’s counsel rape, trial intent of assault with her if she the wife wife stand and asked the defendant’s the witness as a tendered to defendant of no reversible then her error, State, Following Coffey v. practice proper. such is not Rep., GOTexas Crim. other cases. —Same—Evidence—Impeaching 3. Matter. Witness—Collateral rape permit was error the State attack On trial assault matters, with reference to state- defendant’s witness on collateral immaterial prosecutrix ment made in defendant’s absence. witness 4.—Same—Evidence—Demeanor Prosecutrix —Shorthand Pacts. Upon permitting rape trial of assault to was no error State there assault; prosecutrix alleged shortly show demeanor of this was a after occurrence State, Following v. 23 facts. Powers shorthand rendition of the App., Texas Crim. other cases. —Same—Evidence—Impeachment 5. of Witness. rape permit trial of error to On assault was reversible State reference to collateral immaterial attack the matters, of the defendant with injurious the defendant. prejudicial highly which State, v. Following Price 43 S. W. 96. Tried below from the District before Angelina. Court
Appeal I. Hon. Jas. Perkins. penalty, intent to rape; from a conviction of assault with Appeal years two imprisonment penitentiary. states the case. Jr., Townsend, hearsay question appellant W. J. . On matter: Loyd witness on collateral immaterial
attack defendant’s State, v. 35 137; Texas Rushing State, v. 19 Texas Crim. App., 148; State, Wicks 607; v. 8 Crim. App., Truitt Texas Crim. App., O’Quinn 448; State, v. 55 Texas State, 28 Crim. App., v. Texas 542; State, 18; v. 50 Crim. Roquemore Crim. Rep., 45 Texas State, v. Crim. Chapman witness irrelevant issue: impeaching On Huffman State, 174; v. Surrell Texas Crim. State, App.,
v. State, v. App., Texas Crim. Dixon 321; Hart App., id., App., 371; Drake