Mireles v. State ( 1917 )

Appellant was convicted of unlawfully carrying on his person a bowie knife and assessed the lowest punishment.

It is unnecessary to take up all of appellant's assigned errors. He contended that the knife with which he is charged with unlawfully carrying was not a bowie knife, but was a butcher knife for cutting meat, bread, etc. We find with the record a certain knife in a scabbard, the blade of which must be some nine inches in length with a handle four or five inches long, but it is in no way identified as the knife and scabbard which was found on appellant. Our statute (art. 1027, P.C.) prescribes that a bowie knife means any knife intended to be worn upon the person which is capable of inflicting death, and not commonly known as a pocketknife. The knife described by the witnesses, and certainly the knife with the record if it was the knife carried by appellant on his person, would certainly be embraced in the statutory definition of a bowie knife. In Hernandez v. State,32 Tex. Crim. 271, where a party was indicted for an assault with intent to murder with a bowie knife and the proof showed that the knife with which the offense in that instance was committed was a butcher knife, it was held to be in effect the same thing in the view of such statute. The testimony by appellant himself in this case shows that he carried this knife in a scabbard on his person a great deal in and about his own premises.

The law is that it is no offense for a man to carry such arms as this, or a pistol, about his person on his own premises. In view of the testimony showing he so carried it on premises rented by him, the court should have so instructed the jury in this instance.

The testimony further showed, it seems without contradiction, that the fact that appellant was claimed to be unlawfully carrying said knife on his person was communicated to the sheriff, and the sheriff instructed one of the witnesses in effect to arrest the appellant and take him along a public road off of his own premises to the place of another party, to which the officer was going. This witness thereupon arrested appellant on the premises of which he was the tenant and while under this arrest forced him to leave his own premises, when he had the knife on his person in a scabbard, go along a public road and to the place designated by the officer off of his premises. Later the officer arrived there, searched the appellant and found such a knife on his person in a scabbard stuck in his pants. The State was particular to make all this proof, not only by the officer but by other witnesses as well, and it seems the State, because of the appellant's carrying this knife on this occasion, sought his conviction. The appellant requested a charge to the effect that, if he had been arrested as stated and forced to go from his rented premises wherein he lived along the public road and to the other place designated by the sheriff, that that would not be an unlawful carrying of said knife under the law. This charge was refused. It clearly presents error. The charge should have been given.

The testimony on another phase of the case, though disputed, showed in effect that appellant went from his own rented premises into the field of another party with this knife on his person, and there he and other persons had a fuss or fight and that he had this knife on this occasion. The testimony is disputed as to whether or not the appellant was picking cotton under the employment of the owner of that field at the time. He claims, however, that he had the right to carry arms on his person off of his place to where he was at work for another person. This is not the law. If that were true, practically every person in Texas could lawfully carry prohibited arms on or about his person.

For the errors above pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.

MORROW, JUDGE, absent.

ON REHEARING. February 28, 1917.