Cassels v. State , 108 Tex. Crim. 477 ( 1927 )

Conviction is for carrying a pistol in a social gathering. Punishment was assessed at a fine of $100.00.

The charging part of the information is that appellant did "unlawfully carry on and about his person a pistol in a place where persons were then and there assembled, to-wit: a social gathering at the home of one Ella Vick." The offense charged is the one denounced in Art. 485, P. C. It is appellant's contention that the information is insufficient to charge the crime defined in said Art. 485, but does charge the unlawful carrying of a pistol generally under Art. 483, but that the evidence showing the carrying to have been at the home of appellant's mother, where he also lived, it would not justify a conviction under Art. 483. Among other things Art. 485 provides that if any person shall go into any social gathering where persons are assembled, and shall have or carry about his person any pistol, he shall be fined not less than $100 nor more than $500 or be confined in jail not less than 30 days nor more than 12 months, or both. To constitute the crime there must be people assembled at a social gathering and accused must have carried the pistol about his person at such place and time. We are not able to discover any vice in the information. It charges all the elements necessary to constitute the offense. In the Lomax case, 43 S.W. 92, upon which appellant relies, there was an omission to charge that "people were assembled." Pickett v. State, 10 Tex.Crim. App. 290 is not authority for the proposition that the allegations were not sufficient to charge an offense under what is now Art. 485, P. C. In the latter case, the trial court quashed the information in so far as it undertook to aver the carrying of a pistol in a "public assembly." This court was not called upon to determine whether that ruling was correct, but only held it was not error to proceed under what is now Art. 483 of the P. C.

The owner or occupant of a house where people are assembled in a social gathering may be guilty of there carrying a pistol under the provisions of Art. 485 P. C., hence, under the facts proven, the court properly refused appellant's special charge, which directed an acquittal if he was in his own home at the time he carried the pistol. Alexander v. State, 27 Tex.Crim. App. 533; Brooks v. State, 15 Tex.Crim. App. 88. (Other authorities are collated in notes under Art. 485, Vernon's P. C., Vol. 1, page 282.)

Appellant and his mother claimed they had thrown two rooms of the house open to guests but had reserved a bed room and the kitchen for their own privacy, and that the officer took the pistol off appellant in the kitchen. Upon this evidence appellant asked the court to charge the jury that before conviction could be had, they must find beyond a reasonable doubt that the "room where the officer took the pistol from the defendant was thrown open to the public, and was used as a place for a social gathering." The charge was properly refused. If appellant and his mother could devote only a part of the house to public or social purposes, reserving the balance in privacy — which we find it unnecessary to decide — still the requested charge was not applicable under the facts. The officer testified that when he went to the house, appellant was standing in the door, and went through the room where they were dancing into the kitchen where he was followed by the officer, who there took the pistol from him. This evidence showing that appellant had been in the part of the house where the guests were assembled, it would have been improper to direct an acquittal because the pistol was taken from him in some other part of the house.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.