Opinion
No. 23396.
Delivered June 26, 1946.
1. — Pistol (Unlawfully Carrying of) — Evidence.
If defendant obtained a pistol from his wife, which he displayed in nightclub as testified by one of the witnesses, and there was no testimony showing that defendant left nightclub with the pistol, defendant would not be guilty of unlawfully carrying the pistol, even though he might have violated some other statute relative to display of the pistol.
2. — Pistol (Unlawfully Carrying of) — Charge.
Refusal of defendant's request for charge that if he obtained pistol which he displayed in nightclub from his wife after she took it from her purse, he would not be guilty of unlawfully carrying the pistol, even though he might have violated some other statute relative to display of pistol, constituted reversible error, where there was testimony to such effect and record was silent as to what became of pistol after the display.
Appeal from County Court of Lubbock County. Hon. Walter Davies, Judge.
Appeal from conviction for unlawfully carrying a pistol; penalty, fine of $300.00.
Reversed and remanded.
The opinion states the case.
Eugene F. Mathis, of Lubbock, and Glenn R. Lewis, of San Angelo, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
The offense is unlawfully carrying a pistol; the punishment, a fine of $300.
The "Wagon Wheel Inn' is a night club for and patronized by Negroes in Lubbock.
Shortly after midnight on Saturday, September 22, 1945, and while some two hundred patrons were in the club and on the dance floor, appellant displayed a pistol and while waving it around his head, said:
"I am going to take over — all you s- o- b's get out."
A general exodus ensued; the club was soon emptied.
Witnesses testified that appellant drew the pistol from his pocket. However, one witness testified that appellant's wife handed the pistol to him after taking it from her purse.
There is no testimony showing that appellant left the night club with the pistol. As to what became of the pistol after the display, the record is silent.
Appellant insists that if he obtained the pistol from his wife, as testified by the witness, he would not be guilty of unlawfully carrying the pistol, even though he might have violated some other statute relative to the display of the pistol. In support of this contention, he cites: Hicks v. State, 66 Tex.Crim. R., 145 S.W. 938; Davis v. State, 91 Tex. Crim. 156, 237 S.W. 925; Pyka v. State, 80 Tex. Crim. 644, 192 S.W. 1066.
The authorities cited support appellant's contention.
By special charge, as well as exception to the court's charge, appellant sought to have the jury instructed in accordance with this defensive theory. Such an instruction was by the trial court refused.
In so doing, the conclusion is expressed that the learned trial judge fell into error, which requires a reversal of the case.
The judgment is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.