72 S.W. 380 | Tex. Crim. App. | 1903
Appellant was convicted of unlawfully carrying a pistol, and fined $25; hence this appeal.
The evidence shows that appellant was a regular porter of the passenger train on the Houston Texas Central Railroad running from Ennis to Houston, and that it was his duty, among other things, to look out for "bums," or persons stealing rides on the train, and to load and unload baggage at all stations, sweeping out cars, and generally to follow the directions of the conductor who was in charge of the train. He was also authorized, under instructions of the conductor, to keep all "bums" or persons who were not passengers off the train, or, if he found such persons on the train, to put them off. It was also shown in evidence that persons stealing rides frequently gave trouble to the trainmen, and frequently, when they were put off, they threw rocks, sticks, pieces of coal, and other things at persons who put them off; and sometimes such persons were armed with pistols and knives. The conductor testified that on this account, when he knew or believed such *495
persons were stealing rides on the train, he generally sent the porter and others of the train crew to make such persons get off the train. On the particular night in question, when the train approached Mexia, a number of persons were found to be stealing rides on the train, and the conductor sent appellant forward to make them get off the blind baggage. Twice, after the train stopped at the depot, it was stopped, in order to afford an opportunity to make such persons get off. Among these "bums" was the prosecutor, Luther Herod. When appellant went forward to clear the blind baggage of such persons as were intruding on the train, said Herod cursed appellant, and told him to "get away from here, you damn negro; I will cut your throat." Herod jumped down from the train at the front end of the car, and started toward appellant with a knife, as he testified; and appellant called to him not to come on him with that knife, and fired his pistol in the air, to scare him. The train then pulled out, but prosecutor, Herod, succeeded in getting on the train again. Bentley, one of the train crew, heard Herod say that he was going to kill defendant. This was communicated to appellant before they reached Groesbeck. When the train stopped at Groesbeck, appellant, as was his duty, went forward to help put the baggage on the car, and carried his pistol in his hand. As soon as he began to handle the baggage, Herod came up with something in his hand, which appellant took to be a knife or a pistol, but which in reality was a coupling pin. Appellant immediately called out to those around, "Take that man away from here." Herod replied, "You shot at me at Mexia, and I am going to kill you." Appellant insisted on the crowd taking the man away, at the same time holding his pistol in his hand, as he testified, in order to protect himself. At this juncture an officer, who happened to be at the train, interfered, and stopped the difficulty, and took appellant's pistol away from him. It was also shown that appellant generally carried his pistol on the train in a grip or valise, which he kept in one of the cars; that on this particular night, when instructed by the conductor to keep the "bums" off the train, he got his pistol at Mexia, and kept it on his person from that time until after the trouble at Groesbeck. Appellant set up three defenses to the State's charge: (1) That he was a traveler, and as such had a right to carry a pistol; (2) that he had reasonable grounds for fearing an unlawful attack upon his person, and the danger was so imminent and threatening as not to admit of the arrest of the person about to make such attack upon legal process; (3) that he was at his own place of business, and had a right to carry arms. In regard to his defense of being a traveler, we would reiterate what was said in Bain v. State,
The judgment is reversed and the cause remanded.
Reversed and remanded.