Walker v. State , 52 Tex. Crim. 314 ( 1907 )

DAVIDSON, Presiding Judge.

Appellant was convicted for carrying a pistol. The evidence shows that quite a crowd of negroes had gathered at a frolic or festival of some sort on Christmas; that among others present was the defendant and a negro named Billups; that Billups was standing in the yard at night talking to a negro woman and appellant shot him with a pistol. On this evidence the State relied for a conviction.

It is contended that as there was a public gathering in the house near which this trouble occurred, appellant should have been charged with carrying a pistol at a public assembly, or in a place where people had assembled, and that as he was convicted under an ordinary indictment charging unlawfully carrying on and about his person a pistol, that there is a variance between the evidence and the allegation. There is no merit in this proposition. It is no reason appellant should have been acquitted under the charge in this indictment that he was seen with a pistol at the place where people were assembled under the circumstances detailed in this record. He was not charged with carrying a pistol at a public assembly and convicted under the other statute prohibiting carrying pistols, but was charged directly with carrying a pistol, omitting the allegation with reference to assemblies, places of amusement, etc. Appellant cannot complain that the State sought to obtain a conviction with the less punishment. In regard to the application for continuance, in our opinion, there is no merit in it.

The judgment is affirmed.

Affirmed.

Henderson, Judge, absent.