Wilson v. State , 68 Tex. Crim. 572 ( 1912 )

HARPER, JUDGE.

— In this case the undisputed testimony shows that appellant and one Will Woods engaged in gambling in a barn about seven hundred yards from appellant’s residence; that appellant won the money of Woods, when Woods took a scantling and compelled appellant to give him back his money. That appellant then left the barn, went to his home, armed himself with a pistol and returned to the barn, Woods having left the barn, appellant pursued him and shot at him with a pistol. He was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100.

Appellant offered to testify that he went .to his home to get a pistol to arrest Woods and turn him over to the officers for robbing him, as he claimed, and whether or not this testimony was admissible presents the sole question in the case, for if the testimony was admissible, then the special charge should have been given. If the court did not err in excluding the testimony, then no error is assigned which would present reversible error. The testimony shows that the transaction took place in the town of San Augustine; that when appellant fired at Woods an officer immediately appeared on the scene. Then the question presented is, even if Woods robbed appellant, and he, knowing that an officer of the law was in immediate reach, was he authorized to go' seven hundred yards to his residence, secure a pistol, return the same distance, and himself attempt to make the arrest? Each case of this kind must be decided from the facts in that case, and the evidence convincing us that appellant knew that an officer of the law could be reached at once, he was not authorized to go to his home, secure a weapon, and himself undertake to make the arrest. Of course, the State’s testimony would raise the issue that appellant had not such purpose and object, but we are not passing on that question, but solely upon the question that when an officer of the law is in calling distance, or is in easy reach of the arms of appellant, is he authorized to go after his arms and make the arrest, or should he go to an. officer? • Under such circumstances we think it the duty of one to appeal to the officers of the law, and not himself take the law into his own hands, and having reached this conclusion, the judgment is affirmed. The Law aids no one in a gambling transaction.

[Rehearing denied December 18, 1912. — Reporter.]

The judgment is affirmed.

Affirmed.