Short v. State

25 Tex. Ct. App. 379 | Tex. App. | 1888

White, Presiding Judge.

This appeal is from a conviction for unlawfully carrying a pistol.

It is shown by the evidence that defendant had the pistol in the White Elephant saloon on December 12. Defendant proved by Ms witness, Ward, and there was no evidence to contradict the testimony, that on December 12, the defendant owned an interest in the White Elephant saloon, having paid the witness (who was the principal proprietor), one thousand dollars for said interest; that he had a desk in the office of said saloon, where he did his correspondence, and a drawer in the safe in the office in which he kept his papers and other valuables, and that he spent three-fourths of his time at said saloon. Defendant was a silent partner in the concern.

It was also abundantly proved that defendant had, prior to December 13, received several anonymous letters threatening his life. These letters were fully proved up by witnesses, and were read in evidence; and it was shown that defendant had endeavored to procure, and perhaps, did procure, the aid of a detective and deputy sheriff to assist him in ferreting out the authors of the letters, and without avail.

Opinion delivered May 2, 1888.

From the facts as developed in this record, we are of opinion that, at the time the defendant was found with the pistol on his person, he was at his place of business; and furthermore, that at said time, he had reasonable ground for fearing an unlawful attack upon his person, and that the danger was imminent and threatening, and of a character such as did not admit of the arrest, upon legal process,' of the party about to make such attack. ■

In Young’s case, 42 Texas, 462, it is said: “The statute does not prescribe that the party from whom an attack is feared must be actually present before preparation is made for self defense. It is easy to imagine circumstances under which the danger might be most imminent, though the person from whom it was threatened was not immediately present.”

We are of opinion that the verdict and judgment are against the evidence (which will be reported), and the judgment is therefore reversed and the cause remanded.

Reversed and remanded.