Vincent v. State , 72 Tex. Crim. 193 ( 1913 )

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

It is conceded that appellant had the pistol, and he fired it at another negro, the defendant being a negro. The State's witness says he saw the defendant with the pistol on the occasion mentioned, which was near a building on one of the streets in Houston, and saw him fire it into the door of the house. Appellant and two other witnesses testify that a day or two before appellant was seen with the pistol he had made an agreement with Carmichael for the lending of some money to him by Carmichael, the pistol to be placed in pawn as security for the money, which was ten dollars. This money he sought to borrow to pay the expenses of his wife to Marlin from Houston. Leaving home in the morning for his place of business, where Carmichael was also engaged in business in a machine shop, he carried the pistol in his lunch basket. Upon reaching the place he and Carmichael examined the pistol and found it rusty; they cleaned it. Carmichael declined to let him have ten dollars on the pistol, but did let him have some money without taking the pistol as security. At the time he was seen with the pistol he was en route home, and on his direct and usually traveled route home. Upon leaving his place of business he wrapped the pistol in some paper and placed it in his lunch basket. His wife, in the morning upon his leaving home, informed him she would be at this particular house, which was a negro lodge. She requested him to call for her on his return that evening from his work. She had been summoned there for some reason by the lodge. On his return home she was to accompany him from this lodge. Reaching the building he stopped and sent word to his wife that he was waiting for her. Before the messenger returned he heard his wife screaming and holloing for his assistance. A man and woman were beating her. He immediately got his pistol out of the basket and ran to one door, but finding it closed he ran to another. Upon reaching that door a negro on the inside fired at him. He returned the fire. This released his wife. She came and accompanied him to a policeman or officer named Gordon, he carrying the pistol with him. He surrendered and was charged with assault to murder as well as for carrying the pistol. The assault to murder case was tried in the District Court; carrying the pistol case was tried in the County Court at law. He was acquitted of assault to murder. These are, in substance, the facts. The State introduced no evidence to contradict his statement or the statement of his wife, or the testimony of Carmichael.

The State did not controvert nor seek to controvert the defensive evidence, therefore there was no conflict. Eliminate the State witness' evidence and the case remains the same on the facts, so far as appellant having the pistol is concerned. Appellant had the legal right to carry the pistol to his place of business, and he had the legal right also to return it to his home. He had the further right to carry it to Carmichael to pledge or pawn or trade it. Failing in this, he had the further right to carry it back home. The only evidence the State introduced was the fact that appellant had the pistol and fired it. Appellant testifies to the same facts, but excuses it under the evidence stated. The State did not offer any testimony in rebuttal showing or tending to show, in the remotest degree, that the testimony of Carmichael, appellant and his wife was untrue. Therefore, I repeat, there was no conflict in the evidence, and defendant's evidence stands uncontroverted. Where there is a conflict in the testimony the jury, or the court, in the absence of the jury, trying the case, may pass upon and decide that question, but if there be no conflict, then the jury nor the court is authorized arbitrarily to discard the testimony. The evidence in that event would not be sufficient. I understand this to be the settled rule of law, and if it is not it ought to be. Dillingham v. State, 32 S.W. Rep., 771; Impson v. State, 19 S.W. Rep., 677; Sanders v. State, 20 S.W. Rep., 556; West v. State, 21 Texas Crim. App., 427; see especially Irvine v. State, 18 Texas Crim. App., 51. That appellant had the right to carry his pistol to his place of business and return it home has been settled by an unbroken line of authority in this State. See Lewis v. State, 52 Tex.Crim. Rep.; Upton v. State, 33 Tex.Crim. Rep., 26 S.W. Rep., 197; Snider v. State, 43 S.W. Rep., 84; Zollicoffer v. State, 43 S.W. Rep., 992; Foster v. State, 59 Tex. Crim. 44, 126 S.W. Rep., 1155; Craine v. State, 42 S.W. Rep., 302; Mathonican v. State, 51 Tex.Crim. Rep.; Campbell v. State, 28 Texas Crim. App., 44. It has also been decided in an unbroken line that the accused has the right to stop en route home and demand an explanation of an insult to his wife, had he even done so. Quinn v. State, 50 Tex. Crim. 209. He could also have legally taken it to where he had the difficulty to protect his wife, had he known she was going to be in trouble, or if he anticipated that she would be in trouble. Barkley v. State, 28 Texas Crim. App., 99; and it would make no difference that it was loaded. Pressler v. State, 19 Texas Crim. App., 52; West v. State, 21 Texas Crim. App., 427; Fields v. State, 45 Tex.Crim. Rep.. Nor is he required to pursue the shortest route home. Granger v. State, 50 Tex.Crim. Rep., Brent v. State, 57 Tex.Crim. Rep., 123 S.W. Rep., 593. In this particular case, however, appellant was pursuing his accustomed route from his place of business to his home, and it is even shown to be the shortest route. And it is further testified beyond controversy that he was not in the habit of carrying his pistol between his place of business and his home. He had only this one time carried it to his place of business for the purpose stated in the testimony, and was carrying it back home at the time he got into the difficulty with the other negro, and there is no controversy on this question. For full collation of the authorities see Branch's Crim. Law, sec. 190. The evidence in this case does not justify this conviction, and this negro ought to have been acquitted.

For the reasons above indicated I most respectfully enter my dissent.