Smith v. State

Appellant was convicted in the County Court of Hill County of the offense of unlawfully carrying a pistol, and his punishment assessed at 30 days in jail.

The statement of facts shows that the appellant was found with a pistol on his person in the town of Hillsboro by an officer about the time alleged in the indictment. The defense was that appellant had been instructed by his mother to get the pistol and take it to Hillsboro, where she would meet him for the purpose of selling the same.

Appellant complains in bill of exception No. 1 to the action of the court in permitting the officer, Lowe, to testify that when he walked up to the appellant and asked him what he had, he replied nothing, and in effect denied having the pistol just before the time he was searched and found with the pistol. It is the contention of the appellant that he was under arrest at the time. The court after permitting the testimony to go to the jury and after it was shown the remarks of the appellant testified to by the witness were made while under arrest, immediately excluded same from the consideration of the jury. Appellant's contention is that this was error and was not cured by the action of the court in withdrawing the same. We are unable to agree with this contention, and cannot reach the conclusion from this bill and the qualification made thereon by the court, that the matters complained of were of such a nature that the effects of same could not be withdrawn from the consideration of the jury as in this instance, without prejudice to the rights of the appellant.

Complaint is made to the refusal of the court to give appellant's special charges 2, 3, 4 and 5, in substance to the effect that if the mother of the defendant had instructed him to take the pistol to the town of Hillsboro and to meet her there so that she could sell it, and that pursuant to such instructions he had taken it there and was not loitering around the streets with it, to acquit him. We are of the opinion that there was no error in refusing said special charges in view of the fact that in connection with the general charge, the court, at the request of the appellant's counsel, gave his special charge No. 1, which covered all of the phases of this case raised by the evidence, and which properly presented the appellant's defense.

The appellant also complains of the action of the court in refusing his certain special charges wherein he requested the court to instruct the jury to the effect that if the defendant had no intention of violating the law to acquit him. We think the court properly refused these charges, and in this kind of a case the question of intent was not a proper issue to be passed upon by the jury. Cordova v. State, 50 Tex. Crim. 353 [50 Tex. Crim. 353]; Lewis v. State, 84 Tex. Crim. 499 [84 Tex. Crim. 499]; 208 S.W. 576.

Appellant further complains of the action of the county attorney in making his closing argument to the jury, wherein he stated that from the bottom of his heart he conscientiously and honestly believed that the appellant was guilty, and the defense as testified to by himself and his mother was false and a fabrication. This bill shows that when objection was urged to said remarks, the court immediately stopped the county attorney and instructed the jury not to consider same. In view of this qualification of the bill we are unable to state that said argument was of such a nature as to require a reversal of this case.

Appellant insists that the evidence in this case is insufficient to warrant a conviction, because it is shown in the record that he and his mother both testified that she had instructed him to take the pistol to Hillsboro and meet her there in order that she might make an effort to sell same, and that he was complying with her request at the time the officers arrested him and found him with the pistol. Outside of this testimony the appellant introduced the witness, Neal, who testified that the appellant's mother told him that she had sent her son to get the pistol and take it to Hillsboro, where she intended to meet him and offer same for sale, but the officers got him before she got there. The State in rebuttal of this testimony introduced the sheriff who testified that the appellant's mother told him that she instructed the appellant to take the pistol home. This court has held frequently that the jury is not bound to take the testimony of the appellant and witnesses that are deeply interested in the defense, and when the evidence is conflicting and the jury has decided against the appellant's contention, this court is without authority to interfere with the finding of the jury in such instances.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.

The following 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.