(No. 3086.)
(Court of Criminal Appeals of Texas.
April 8, 1914.
On Motion for Rehearing, May 6, 1914.
Rehearing Denied June 3, 1914.)
On Motion for Rehearing.
1. Weapons (§ 13*) — Carrying Weapons— Pebsons Exempt from Prosecution.
It is no defense to a prosecution for unlawfully carrying a pistol that the defendant armed himself for the purpose of hunting another who had had adulterous relations with his wife in order to seek an explanation from him, even though that fact was such provocation as would reduce a homicide at their first meeting to murder, since it is not made one of the exceptions by the statute prohibiting the unlawful carrying of pistols, and the court cannot add another exception to those enumerated.
[Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 16, 17;' Dec. Dig. § 13.*]
2. Weapons (§ 13*) — Carrying Weapons— Persons Exempt prom Prosecution.
Nor does the fact that the other had made threats to kill defendant under certain circumstances justify defendant’s act in arming himself and going into another county to seek the other.
[Ed. Note — For other cases, see Weapons, Cent. Dig. §§ 16, 17; Dec. Dig. § 13.*]
3. Weapons (§ 11*) — Carrying Weapons— Persons Exempt — “Travelers.”
One who goes from a point in one county to a point in another is a “traveler” within the meaning of the law, which allows a traveler to carry arms; but after he arrives at his destination, secures a room, and remains there all night, he ceased to be a traveler, and, if he carries his pistol next morning while going around the town, he is guilty of unlawfully carrying it.
[Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. § 11.* .
For other definitions, see Words and Phrases, vol. 8, p. 7820.]
Appeal from Nacogdoches County Court; Geo. F. Ingraham, Judge.
Dan Ballard was convicted of unlawfully carrying a pistol, and he appeals.
Appeal dismissed, but reinstated on rehearing, and judgment affirmed.
V. E. Middlebrook, of Nacogdoches, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
Appellant was convicted of unlawfully carrying a pistol, and undertakes to prosecute an appeal to this court, but the recognizance is insufficient in law to confer jurisdiction on this court; therefore the appeal is dismissed. Bigelow v. State, 36 Tex. Cr. R. 402, 37 S. W. 330.
The appeal is dismissed.
On Motion for Rehearing.
Since the dismissal of this case, appellant has filed a proper recognizance, and appellant is entitled to have the case considered on its merits, and the order of dismissal is therefore set aside, and the cause reinstated.
[1, 2] In the first bill of exception it is contended that appellant had the right to arm himself with a pistol and hunt a person who had had adulterous relations with his wife to meet and resist whatever might arise when he found deceased and demanded an explanation of his conduct. While adulterous relations with one’s wife will reduce an offense to manslaughter, if the killing takes place on the first meeting, yet such conduct does not justify one in carrying a pistol on and about his person. This is not one of the exceptions enumerated by the statute, and the court has no authority to ingraft others therein. The fact that deceased had made threats to kill appellant under certain conditions would not authorize appellant to arm himself and to go into another county in search of him. If he does do so, he is guilty of unlawfully carrying the pistol. When he finds deceased, the facts and circumstances arising at the time may justify the homicide; but it does not excuse nor justify the carrying of the pistol.
[3] It is true that one who leaves San Augustine and travels to Teneha, in other county, would be a traveler, and he could carry a pistol while engaged on such a trip. But when he arrived at his destination, and put up at a house, there he should leave his pistol, and if he does not do so, but keeps it on his person while knocking about the town and hunting for another person, he violates the law. When the evidence shows that he went to bed after arriving at the end of his journey, gets up next morning, puts on his pistol, and goes in search of Miller, he was guilty of carrying a pistol.
The judgment is affirmed.
167 S.W. 340
Nothing yet... Still searching!
Nothing yet... Still searching!