Opinion
No. 19560.
Delivered March 23, 1938.
Pistol (Unlawfully Carrying) — Charge — Affirmative Defense.
In prosecution for unlawfully carrying a pistol, where it was in evidence that accused took the pistol from his thirteen-year-old brother for the purpose of returning it to its owner, refusal to submit instruction covering accused's affirmative defense which had been properly requested, held reversible error.
Appeal from the County Court of Dimmit County. Hon. E. L. O'Meara, Judge.
Appeal from conviction for unlawfully carrying a pistol; penalty, fine of $100.
Reversed and remanded.
The opinion states the case.
G. C. Jackson and Jno. T. Spann, both of Crystal City, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is unlawfully carrying a pistol; the punishment, a fine of $100.
Two officers observed appellant on the bank of the Nueces River in the eastern part of Dimmitt County, carrying a pistol. Appellant's brother Richard, who was thirteen years old, was with him. Mr. Dunlap testified that appellant and his family had a camp on his land on the occasion of the arrest. It appears further from the testimony that there was an automobile at the camp, which belonged to appellant's brother Hubert. Hubert's pistol was in the car. The thirteen-year-old brother, Richard, testified that he had gotten the pistol from the car without appellant's knowledge and had followed appellant across the river. When appellant observed that he was carrying the pistol he took it away from him and placed it in his pocket. Appellant testified that when he saw his young brother carrying the pistol he took possession of it for the purpose of returning it to the camp. His testimony was to the further effect that the pistol belonged to his brother Hubert. Again, he testified that he had just taken possession of the pistol when the officers approached and arrested him.
The court failed to submit an instruction covering appellant's affirmative defense. Appellant presented a requested instruction covering the subject, which was refused, and also excepted to the charge for its omission. We are constrained to hold that reversible error is presented.
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.