Deuschle v. State , 109 Tex. Crim. 355 ( 1927 )

In our original opinion we reluctantly followed the case of Ball v. State, 25 S.W. 627, which was interpreted by us to mean that a public road running through a homestead was a part of the premises, as that word is used in Art. 484 of the Penal Code, so that a person in possession of same charged with unlawfully carrying a pistol came within one of the exemptions named in said article. The facts of the Ball case are meagerly stated and perhaps a fuller statement might disclose that it is not out of line with what, upon fuller consideration, we now believe is the correct rule in cases of this character. If our original interpretation be correct then the Ball case is unsound and any express or implied holding of same as interpreted above is overruled.

One of the jury questions in this case was whether or not appellant had the pistol at the time of the assault for an unlawful purpose. She had the right to the full use of the public road in question in the performance of any act or thing pertaining to the legitimate use and enjoyment of her premises and when so using it did not violate the pistol law in having with her such a weapon on the public road. It would, we think, however, be stating the rule too broadly and be provocative of too much mischief to say that she would have the right to carry prohibited weapons upon such a road irrespective of her intent and purpose in having same. Although a public road running through a homestead may be a part of the premises for the purpose of their legitimate use and enjoyment by the owner, the real right of possession to such road belongs in the public so as to exclude its use by such owner for an illegal purpose not in any way connected with the right of use and possession of the premises through which the road runs.

Sec. 23 of the Bill of Rights to our State Constitution provides:

"Every person shall have the right to keep and bear arms in the lawful defense of himself or the state, but the legislature shall have the power by law to regulate the wearing of arms with a view to prevent crime."

In response to and in furtherance of said permissive clause, the legislature, to prevent crime, has prohibited the carrying of certain arms with the exemptions set out in Art. 484 of the Penal Code. This class needs no further authority than the terms of the statute as a defense and having the right by law to carry a pistol, the purpose in carrying same is immaterial. There is, however, a second class, not defined by statute, which under our decision are exempted from the operation of the pistol law. Their right to carry a pistol may be said in a general way to be an incident of their constitutional right to own, possess and bear arms. The following Texas cases illustrate this class:

A weapon may be lawfully carried to one's home, place of business, or to a repair shop for the purpose of repairing it. Mangum v. State, 90 S.W. 31; Roberts v. State, 60 Tex. Crim. 112; Morris v. State, 163 S.W. 709; Fitzgerald v. State, 52 Tex.Crim. Rep.. Or a pistol may be carried from store to store in search of ammunition. Waddell v. State, 37 Tex. 354. Or at the direction of his employer an employee may carry to another store. Huff v. State, 51 Tex.Crim. Rep.. He has a right to carry the pistol to deliver it to the party to whom he sold it. Upton v. State, 26 S.W. 197. Sec. 987, Branch's P. C., states the rule broadly in pistol cases as follows:

"An act in violation of the letter but not of the spirit of the law is no offense."

See also Moore v. State, 86 Tex.Crim. Rep.; Elliott v. State, 45 S.W. 711.

In the second class of cases the right to carry a pistol cannot co-exist with an unlawful purpose and intent in carrying it. When the purpose for which it was being carried ceased, the legal right to carry it also ceased, while in the first class of cases mentioned above, such purpose could not be inquired into, if the facts conclusively showed that the person charged was within one of the exceptions of the statute.

We have concluded that the facts of this case place it within the second of said classes instead of the first, as formerly held.

The appellant had the undoubted right to go upon the public road with a pistol in making a journey to and from her separated tracts of land for the purpose of transacting business legitimately connected with the operation of her premises, but when her purpose was unlawful and had no legitimate connection with the business arising out of or incident to her possession and enjoyment of the premises, her right to have a pistol ceased and her act in carrying it thereupon became unlawful.

Errors of omission occurred in the court's main charge of which complaint is made. Special charges given at the request of appellant, we think, cured these errors. Their interest to the bench and bar do not justify the use of lengthy space in their discussion. The charges are, as a whole, if anything, perhaps more liberal than appellant was entitled to.

Believing that no error was committed, the judgment heretofore entered reversing and remanding this cause is hereby set aside, the state's motion for rehearing is granted, and the judgment of the trial court is affirmed.

Rehearing granted State.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.