Traylor v. State , 91 Tex. Crim. 262 ( 1922 )

Appellant was convicted for unlawfully carrying a pistol, punishment being assessed at a fine $100.

On the day appellant was arrested the constable, sheriff and deputy sheriff had occasion to go to the home of Gus Thompson who lived in Bonham. What carried them to Thompson's house is not disclosed by the record. The sheriff and deputy went into the house, the constable remaining in a car. Appellant was seen to leave the house and go out by the barn, across an alley and get over a high board fence into a lot on property which belonged to Mrs. Russell. Appellant was running at the time he was crossing the alley and going over the fence into the lot and was halted by the constable. He and the sheriff caused appellant to come back over the fence into the alley where he was searched and found to have a pistol in his possession. Appellant was boarding at Thompson's house and his contention was that he never left the alley and there was arrested and that this alley was private property belonging to Thompson and therefore as he boarded at Thompson's home he had a right to carry the pistol on the premises and in the alley.

The motion for new trial does not complain that the evidence is insufficient to support the verdict, but this question is raised by appellant in his brief. It is contended that if he left the premises of Thompson only temporarily and with the intention of immediately returning he would not be guilty of carrying the pistol. As we understand the record appellant was not only carrying the pistol but was proceeding rather rapidly with it, if the State's witnesses are to be believed, and that he had gotten some twenty or thirty feet off of the premises where he boarded. His return was not a voluntary act on his part, but he was caused to come back by the officers halting him and compelling him to return.

By bill of exception number one complaint is made at paragraph three of the court's charge. The case appears to have been tried on July 7, 1921. The bill of exception was not filed until August 24, 1921. It nowhere appears in the record that any objection or exception in writing was filed to the charge at the time of trial The exception therefore can not be considered. A number of special charges were requested. Although bearing file mark of date July 7, 1921 they do not show to have been presented to the judge before his main charge was read. This being a misdemeanor case complaint at the failure to give the special charges must be brought forward by bills of exception. Vernon's C.C.P. Art. 739, page 499; Stephens v. State, 91 Tex.Crim. Rep., 234 S.W. Rep. 540; Parroccini v. State, 90 Tex.Crim. Rep., 234 S.W. Rep. 671. An attempt to meet this requirement appears to have been made, for we find in the record what purports to be bills of exception numbers 2, 3, 4, 5 and 6 to the failure to give the special charges. The date of approval by the trial judge is not shown, and so far as the record discloses the bills of exception have never been filed. In this condition of the record they can not be considered. Branch's Anno. P.C., Section 219, page 140; Oliver v. State, 58 Tex.Crim. Rep.; 124 S.W. Rep. 637.

The judgment of the trial court is affirmed.

Affirmed.

ON REHEARING. April 26, 1922.