Whitesides v. State

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $25, and he prosecutes this appeal.

By his first bill of exceptions appellant questions the action of the court in not permitting him to inquire of the prosecuting witness, R.D. Miller, if he had not, shortly after the occurrence at Whiteside's house, made a statement to the witness Clinton Whitesides to the effect that he was not certain, and would not swear, that defendant had a pistol. It is not stated in this bill what the witness would have testified on this point. For aught that we know, he may have testified he made such statement to witness, and then explained how he came to make it. If it had been stated that it was expected to be proved by said witness that he did not make such statement, and that this testimony was desired for the purpose of laying a predicate on which to contradict him by the witness Clinton Whitesides, then the bill would have been complete, and we would have had a proper assignment before us.

Appellant also excepted to the remarks of the county attorney in his closing speech. The court explains this bill by stating that the language used by the county attorney was in response to an argument by appellant's counsel. In addition to this, there was no written charge asked eliminating this matter from the consideration of the jury.

It is also insisted that the court committed a material error in giving the following instruction to the jury: "If you have a reasonable doubt of the guilt of defendant from the evidence, you will acquit," — the contention being that the doubt must arise from the evidence. While it is true that the doubt may arise either from testimony or from the want of testimony, yet we fail to see, in this particular case, how the doubt could be engendered except from the testimony. The prosecuting witness swore positively to appellant's having a pistol on the occasion inquired about, while appellant swore positively to the contrary. So it was a doubt engendered by the testimony pro and con.

Appellant requested the court to give an instruction authorizing the jury to acquit him if they believed that at the time the State's witnesses testified he saw him with the pistol he (appellant) was on his own premises, and entered the same in the usual course of his business or occupation. We have examined the testimony, and, in our opinion, the evidence did not require a charge on this subject. The proof showed that the locus in quo where the alleged offense was committed was in a certain pasture; that the pasture was not rented to appellant's father, but he merely had a permissive use of the pasture with others; that appellant was seen with the pistol in said pasture at night. There is no proof, in connection with his being there, that he was engaged in any business. We do not believe the law intended to authorize a person to carry a pistol under such circumstances, not being on his own premises. The mere permission to turn his horses into the pasture did not constitute the pasture appellant's premises; especially as this privilege was enjoyed by the owner of the pasture as well as other tenants on the place. There appearing no error in the record, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING. October 24, 1900.