Sanders v. State.

(Court of Criminal Appeals of Texas. Nov. 23, 1892.)

Carrying Weapons--Evidence.

The accused, on being found about three quarters of a mile from his place of business, and about a quarter of a mile from his residence, sitting on the ground, with the wife of complaining witness, picked up a pistol lying by him on the ground, and departed, and, on the trial for carrying a pistol, testified that he was carrying it to his place of business for the owner. Held, that the evidence sustained the conviction.

Will Sanders was convicted of the crime of carrying a pistol. From that judgment he appeals. Affirmed.

Jas. Turner & Son, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

Davidson, J. The prosecution and conviction in this case were for carrying a pistol. The facts show that defendant was found about three quarters of a mile from his place of business, and about a quarter of a mile east from his residence, sitting on the ground, in company with the wife of the state's witness Simpson, having the pistol lying by him on the ground. When discovered by the husband, he picked up the pistol, and took his departure. His place of business was north from his residence, and distant about 400 yards. Defendant testified that he was carrying the pistol to his place of business from his residence, for the purpose of permitting the owner to redeem it. The defendant had had possession of the pistol for about six months. On cross-examination, the county attorney asked defendant how often he had carried the pistol prior to the time alleged. Objections that the testimony was irrelevant and immaterial being overruled, the defendant answered that he had never before carried the pistol. Under the facts of this case, the question was relevant and material, and, besides, his reply was favorable to himself.

It is contended that the testimony does not sustain the conviction. In this view of the case we do not concur. While the defendant would not have been guilty of a violation of the law in carrying the pistol to his place of business from his residence, for the purpose of returning it to the owner, yet he would not be authorized to carry it about over the neighborhood and adjoining country for other and different purposes not authorized by law. The statement of facts does not warrant the conclusion that defendant was returning the pistol to the owner through the act, agency, or procurement of the woman with whom he was found, nor does it justify the conclusion that she met him at the time and place they were found together, for the purpose of redeeming the pistol for the owner. The state made out a prima facie case of guilt against the defendant, and, in order to avoid the conviction, it devolved upon him to establish facts or circumstances to excuse or justify the prohibited act. While the question of intent or honesty of purpose, in a proper case, may excuse or justify carrying a pistol, yet such matters cannot be simulated for the purpose of evading or violating the law. Stilly v. State, 27 Tex. App. 445, 11 S.W. Rep. 458; Impson v. State, (Tex. App.) 19 S.W. Rep. 677. "If the defense is an honest one, and supported by the facts, and there is no evidence tending to impeach it, the jury should acquit, and, under such circumstances, if a conviction be secured, it should not be permitted to stand." Impson v. State, (Tex. App.) 19 S.W. Rep. 677. On the contrary, if such is not the case, and the defense is not an honest one, or the facts impeach it, or tend to do so, and the jury convict, this court will not disturb the conviction. To our minds the testimony fully sustains the conviction, wherefore the judgment is affirmed. Judges all present and concurring.