Schroeder v. State

Appellant was indicted under article 340, Penal Code, for carrying a pistol into a social gathering. The facts, briefly stated, are that there was a ball or social gathering at the Turnverein Hall, some ten or twelve miles from Lockhart in the Rogers' pasture. The club owned four acres of land. It had a dance hall, 60 x 100 feet, and a couple of rooms attached to and under the same roof, for a cloak room, ladies' room and place for depositing the little children. At the opposite end of the hall was another room, where beer was kept. These small rooms were cut off from the main room by partition walls. From each room there opened into the main room a door for ingress and egress to the ball room. There was also a door from the beer-room opening outside. Appellant and Eustace attended the social function on the evening in question, and drove out from Lockhart, in a buggy, supplied by Eustace. Eustace had intended carrying a deputy sheriff, but for some reason the sheriff disappointed him, and he went by and induced appellant to accompany him. Eustace carried a pistol under the seat or back of the seat on the floor of the buggy. Upon reaching the vicinity of the Turnverein, they alighted and hitched their team. Eustace requested appellant, as he did not desire to leave the pistol in the buggy for fear of its being stolen, to put it away for him until they should return to Lockhart that night. Appellant was a member of the club, and picked up the pistol, carried it into the beer-room, walked behind the bar and deposited it, with the consent of the proprietor. About 1 or 2 o'clock, when appellant and Eustace got ready to leave, appellant went in the bar-room, got the pistol, passed out through the outside door to the buggy, and thence thy returned to Lockhart. The evidence shows that appellant went into the door from the outside of the building, when he deposited the pistol, and left through the same door going out of the building, when he left to return home. Witnesses testified that appellant did not have the pistol in the ball room, and that it remained behind the bar in the bar-room until they left; and they had some trouble in finding it when they got ready to leave, as it had been moved during the interrim. This is the substance and practically all of the salient features of the testimony. In order to constitute a violation of this phase of article 340, it would be necessary that appellant carry the pistol into the ball room. Such is the language of the statute.

Several charges were asked presenting appellant's theory of the case, which were refused. Without discussing them, we think some of them were directly pertinent and presented sharply the matter for the adjudication of the jury. But, as we view the evidence it is not sufficient to justify appellant's conviction. He did not carry the pistol in the ball room, if in fact he was guilty of carrying it all, under the decisions in this State. Sanderson v. State, 23 Texas Crim. App., 520; Cathey v. State, 23 Texas Crim. App., 492; Lann v. State, 25 Texas Crim. App., 497; Hardy v. State, 40 S.W. Rep., 299; Brooks v. State, 15 Texas Crim. App., 88.

The record does not contain the complaint upon which the information is based. This is probably an omission. If a complaint was not filed in the trial court, the prosecution could not be maintained; and for this reason the judgment would have to be reversed and prosecution ordered dismissed. But even if there was a complaint the conviction is not supported by the evidence.

The judgment is reversed and the cause remanded.

Reversed and remanded.

ON REHEARING. February 20, 1907.