KELLUM v. STATE.

(Court of Criminal Appeals of Texas. May 22, 1912.)

Weapons--Carrying Weapons--Statutory Offenses.
Accused, temporarily residing in a city under a physician's treatment, had his room in the city hospital, but often spent his nights with a friend, rooming in one of the physician's offices. While spending the night with the friend, the latter gave accused a pistol, and the following morning accused carried the pistol while going by the nearest practicable route to the hospital. Held, that accused was not guilty of carrying a pistol in violation of the statute.

Jim Kellum was convicted of carrying a pistol in violation of law, and he appeals. Reversed and remanded.

Collins & Cummings, of Hillsboro, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of carrying a pistol in violation of the statute.

Appellant at the time of the alleged offense was temporarily residing in Whitney, Hill county, under treatment of a physician, and had been so residing for two or three weeks. He resided or boarded and had his room in the city hospital in Whitney, spending most of his time during the day at the office of the physician who was treating him, and often spent his nights with a young man who had a room in one of the physician's offices. On the occasion that was predicated for this prosecution, appellant spent the night with a friend in one of these offices; the name of the friend being Harris. While in the room Mr. Harris said that the electric lights would go off directly, and went downstairs to get a lamp, requesting appellant to go with him. They went to a drug store, which was in an adjoining building, returning to the room in a few minutes. In going upstairs on their return, Harris handed appellant a box, and, upon being asked what was in it, Harris stated it contained an automatic pistol; that he did not want it about his office, and made appellant a present of it. The pistol was in the original package. The box was not opened that night. It was kept in the room by appellant where he spent the night. The next morning he left, going to his own room at the hospital, taking the pistol with him, having it in his pocket. En route he met the proprietor of the hospital and stopped momentarily to make some inquiry, and while thus talking the city marshal approached and arrested him. He asked the officer why he arrested him. The officer refused to give him the information. Appellant made some resistance of being arrested, but was carried by the officer and another party to another part of the town and searched. The pistol was found and taken from him. This is about the substance of the testimony.

We are of opinion this does not constitute a violation of the statute. Appellant had the right to spend the night with his friend, and when the friend gave him a pistol he had the legal right to carry that pistol to his room. He was en route to his room and by the nearest practicable route, as the testimony (p.871)shows, at the time he was arrested by the officer.