DocketNumber: No. 1553
Citation Numbers: 15 Tex. Ct. App. 23
Judges: White
Filed Date: 11/7/1883
Status: Precedential
Modified Date: 9/3/2021
In this case two grounds are urged in the motion in arrest of judgment: First, the judgment is not supported by law; and second, the information is insufficient, because it fails to negative the exceptions contained in Article 319 of the Penal Code, with reference to “unlawfully carrying arms.”
With regard to the second ground, it was said in Lewis v. The State, 7 Texas Court of Appeals, 567, “under the provisions of our present Penal Code, regulating the keeping and bearing of deadly weapons, it is unnecessary, in an indictment, to allege more than that defendant did unlawfully carry upon his person, etc., the forbidden weapon. Under former laws the exceptions were contained in the enacting clause, and it was requisite that each should be substantially negatived. It was never necessary to prove these negative averments, they being always held as matters of defense” (citing authorities.)
As to the first proposition, viz., that the judgment is not supported by law, the facts in substance were, that appellant, at the time he was charged with carrying the weapon unlawfully, was so carrying it upon land owned and belonging to himself and brother, but which they had leased to a tenant, and it was in possession of the tenant. The theory of the defense was that the land being his own, it was no violation of law for defendant to carry, or be found carrying, a weapon “upon his own premises,” the right to do so being reserved to him by the exception contained in Article 319 of the Penal Code.
It appears from the evidence that he had leased the premises for a year, and the lease, which was in writing, is set forth in the statement of facts. We find in it no reservation which gave him the right, during the term, to enter at will upon the rented premises and use them as he would his own. In the absence of such a reservation, the general rules as to the rights of landlord and tenant would obtain. These are succinctly stated by Mr. Wood, in his standard work on Landlord and Tenant. At sectian 538, he says: “As has been previously stated, when the
In this view of the law of the case, we can perceive no error in the action of the court on appellant’s application for a continuance, nor in admitting the evidence to which the bills of exception were reserved. There being no error, the judgment is affirmed.
Affirmed.