Opinion
No. 1140.
Decided April 14th, 1897.
Unlawfully Carrying a Pistol — Charge.
On a trial for unlawfully carrying a pistol, where the evidence showed, that the pistol was in the box of a wagon in which defendant and others were riding, the court erred in charging the jury, "that if a person carry a pistol in a wagon in which he is riding, such pistol being near and within easy reach of such person, then, in law, this would be carrying a pistol about his person."
APPEAL from the District Court of San Saba. Tried below before Hon. W.M. ALLISION.
Appeal from a conviction for unlawfully carrying on and about his person a pistol; penalty, a fine of $25 and ten days' imprisonment in the county jail.
No statement necessary.
[No brief for appellant.]
Mann Trice, Assistant Attorney-General, for the State.
Appellant was convicted of carrying on and about his person a pistol; hence this appeal. The testimony for the State proves the allegation in the indictment. The evidence for the appellant shows that the pistol was in his wagon, and lie did not have it on and about his person; that it was in a box in the wagon in which defendant and others were riding. The court charged the jury in this connection "that if a person carry a pistol in a wagon in which he is riding, such pistol being near and within easy reach of such person, then, in law, this would be carrying a pistol about his person." This charge was excepted to by the defendant, and the following special charge requested: "If the jury should find, from the evidence in this case, that the defendant's pistol was carried in a box in the front end of the wagon in which defendant came to San Saba town, and not on or about his person, defendant would not be guilty, and you should so find by your verdict." This was refused. We believe the court's charge was erroneous, and the charge asked by the defendant should have been given. See, Cathey v. State, 23 Tex.Crim. App., 492. The judgment is reversed, and the cause remanded.
Reversed and Remanded.