Opinion
No. 2925.
Decided January 14, 1914.
Carrying Pistol — Sufficiency of the Evidence.
Where, upon trial of unlawfully carrying a pistol, the defendant claimed that the pistol he carried had no cylinder in it and could not be fired, but there was evidence to the contrary, the conviction was sustained.
Appeal from the County Court of Panola. Tried below before the Hon. W.R. Anderson.
Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100.
The opinion states the case.
No brief on file for appellant.
C.E. Lane, Assistant Attorney-General, for the State.
Appellant was convicted of unlawfully carrying a pistol. He admits having the pistol on the occasion charged, but his defense is that the pistol had no cylinder and could not be shot. He supports this by the testimony of several witnesses who testify to seeing him at several different places with a pistol with no cylinder in it. He was tried before the court, having waived a jury. The question before us, is there any testimony in the record which would justify the verdict, not what we would have found had we been the trial court? The only assignment of error is the insufficiency of the testimony to sustain the verdict. George Yates testified: "I know the defendant, Donnie Lawless, have known him several years. I saw the defendant in the town of Deberry on the 6th day of July, 1913. He and Clayton Lawless drove up in a buggy and stopped in front of my store. I went out to the buggy and while standing near the buggy I saw the defendant, Donnie Lawless, reach down in the foot of the buggy, took a pistol from a scabbard and unloaded it, extracting shells therefrom. It was a blue pistol, like the one you have there." On cross-examination he testified that he knew there was a cylinder in the pistol when he saw it. This would authorize the court to find the verdict he did find. The trial court saw and heard the witnesses, and he is more capable of passing on the credit to be given the testimony of each of them than we are at this distance.
The judgment is affirmed.
Affirmed.