Nаthaniel WILSON, Appellant, v. The STATE of Texas, Appellee.
No. 40219.
Court of Criminal Appeals of Texas.
June 21, 1967.
Rehearing Denied July 26, 1967. Secоnd Rehearing Denied Oct. 11, 1967.
418 S.W.2d 687
WOODLEY, Presiding Judge.
“Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or morе persons, the ownership may be alleged to be in all or either of them. * * *”
Ritchie v. State, 171 Tex.Cr.R. 51, 344 S.W.2d 878; Salinas v. State, Tex.Cr.App., 365 S.W.2d 362; Lockett v. State, 59 Tex.Cr.R. 531, 129 S.W. 627, 628.
The provisions of
The judgment is affirmed.
Jack Hampton, Dallas, for appellant.
Henry Wade, Dist. Atty., Darrell Jordan, Al Alsup and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, Stаte‘s Atty., Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
The offense is unlawfully carrying a pistol; the punishment, 6 months in jail.
Trial was before a jury on a plea of not guilty.
The only ground of error raised on appeal is the sufficiency of the evidence to sustain the conviction. Appellant contends that his case falls within the exceptiоn to the pistol law (
The jury was charged as follows:
“As a part of the law in this case, a defendant hаs the legal right to carry a pistol upon premises of which he has control and whiсh are subject to his
use; therefore, if you find from the evidence, or have a reasonable doubt thereof, that the carrying of the pistol by the defendant was solely uрon premises under his control and of which he had the use, you will find the defendant not guilty and so say by your verdict. In this connection, you are instructed that the terms ‘control’ and ‘use’ do not mean exclusive control and use.”
Appellant was a tenant in a large аpartment complex containing several hundred units in a number of separate buildings. On thе evening in question another tenant, Matt Crawford, held a birthday party for his wife at the aрartment recreation building. After the party was over several persons, including appellant, stayed to take the things back to the Crawford apartment that had beеn taken there for use at the party.
Appellant and Matt Crawford got into an argumеnt on the driveway immediately adjacent to the apartment building in which appellаnt leased and occupied an upstairs apartment. Arthur Simmons testified that he walkеd up to where the argument was taking place and took a knife out of appellant‘s hand, and that at the same time several of Matt Crawford‘s relatives took а knife out of Crawford‘s hand. Appellant immediately left the scene and was seen gоing into a neighbor‘s apartment located in the opposite direction from his own. Approximately ten or fifteen minutes later, appellant returned and had a pistol in his hand. Simmons testified that appellant did not come out of his own apartment; that he (Simmons) was facing appellant‘s apartment, talking with other people, and that he would have known had appellant gone into his own apartment. Appellant accosted Simmons and the latter turned around to walk away, but was hit by appеllant on the head from behind with the pistol, and was knocked unconscious.
There was nо direct testimony that appellant was seen with the pistol at any place other than the driveway adjacent to the building in which he lived. The testimony showed that there was a ten foot wide strip of grass between the sidewalk and the apartment building, and that thеre was a parking lot on the other side of the driveway from the building. The manager of the apartment complex testified that the grass, sidewalks, driveway and parking lot werе for the use of all tenants of the complex.
Viewed in the light most favorable to the state, we find the evidence sufficient to sustain the jury‘s finding that the carrying of the pistol by appellant was not solely upon premises under his control and that reasonably nеcessary to the use and enjoyment of such premises.
The judgment is affirmed.
OPINION ON APPELLANT‘S MOTION FOR REHEARING
DICE, Judge.
We have again reviewеd the record in light of appellant‘s motion for rehearing, and remain convinced that the facts do not bring this case within the exception to the pistol law,
We are unаble to agree that a tenant who carries a pistol upon the grass, sidewalks, driveway, and parking lot jointly used by all tenants of a large apartment complex, such as the one described herein, is on “one‘s own premises,” within the meaning of the statute.
The motion for rehearing is overruled.