Opinion
No. 4842.
Decided January 30, 1918.
Carrying Pistol — Insufficiency of the Evidence.
Where, upon trial of unlawfully carrying a pistol, the evidence showed that the defendant had purchased the pistol, and that it was delivered to him by the vendor when he started home with it and was arrested, the conviction could not be sustained.
Appeal from the County Court of Houston. Tried below before the Hon. E. Winfree.
Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of one hundred dollars.
The opinion states the case.
Moore Ellis, for appellant. — On question of insufficiency of the evidence: Waldstein v. State, 29 Texas Crim. App., 82; Granger v. State, 50 id., 488; Brooks v. State, 52 id., 417; Brent v. State, 57 Tex.Crim. Rep.; 123 S.W. Rep., 593; Mangum v. State, 15 Texas Crim. App., 362. E.B. Hendricks, Assistant Attorney General, for the State.
Appellant was convicted of violating the pistol law, his punishment being assessed at a fine of one hundred dollars.
Under the evidence appellant ought not to have been convicted. Bearing upon that particular phase of the case the evidence discloses that appellant had a pistol; that he and others had gone to or near a social gathering. Without giving details why appellant was there, it is sufficient to state he went to see a party with reference to a business matter whom he expected to meet. While there a party came and turned over to appellant a pistol. The evidence shows that appellant had bought the pistol from the party, and he delivered it to him on this occasion. Appellant had previously made a trade for the pistol. The seller was to deliver it to him. It seems he did not anticipate seeing him on this occasion, but he came and turned over the pistol to appellant. Appellant started home with it and was arrested within a short distance. The other facts are deemed unnecessary to state. This is the evidence as to appellant having the pistol. Under this view of it we are of opinion this was not a violation of the pistol law. Having purchased it he had a right to carry it home.
The judgment will be reversed and the cause remanded.
Reversed and remanded.