Brogdon v. State

• Decision Date: 25 October 1911
• Citation: 140 S.W. 352
• Parties: BROGDON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 352

140 S.W. 352

BROGDON v. STATE.

Court of Criminal Appeals of Texas.

October 25, 1911.

Appeal from Young County Court; E. W. Fry, Judge.

Noble Brogdon was convicted of carrying a pistol, and appeals. Affirmed.

C. W. Johnson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted under complaint and information charged with unlawfully carrying a pistol, and on March 24th was convicted in the county court of Young county, Tex., and his punishment assessed at a fine of $100, and imprisonment in the county jail for 30 days.

It appears from the record that the statement of facts is not copied in the transcript as provided by law; this being a misdemeanor, and the law in relation to official stenographers not applying to criminal cases tried in county court. By reference to that law (Acts of 31st Legislature [1st Ex. Sess.] p. 374) it will be seen that the provisions of that act apply alone to the courts' official shorthand reporters, and that their appointment is not authorized in criminal cases in county court. See sections 1 and 13 of said act. The motion of the Assistant Attorney General to strike out statement of facts is sustained.

But, should we consider the statement of facts, three witnesses testify that appellant went home with Miss Criss on Friday night, March 3d, and on that occasion displayed a pistol, which he took out of his pocket.

The appellant's witnesses testify that defendant did not go home with Miss Criss on March 3d, but with another lady, and also testify that on the night of March 3d defendant's pistol was in the trunk of Mrs. Whitley with whom he boarded. They also testify that appellant owned a toy pistol, which he used to squirt water. Appellant himself testified that he went home with Mrs. Whitley on the night of March 3d, and had no pistol on that night, but on cross-examination admitted that he went home with Miss Criss on Saturday night, March 4th, and on that occasion displayed a pistol, but which he says was the toy pistol the witnesses had testified he owned.

The three state's witnesses all say that the pistol displayed was not the toy pistol, that the toy pistol owned by defendant and the one introduced in evidence were not the same pistol, and the toy pistol was not the pistol defendant displayed on the night he went home with Miss Criss, but the pistol he had that night was a 38-caliber pistol.

Appellant complains that, as the state witnesses had said it was on the night of March 3d that he went home with Miss Criss, and the night he displayed the pistol, the state on cross-examination ought not to have been permitted to ask defendant if he went home with Miss Criss on the night of March 4th, and if he had a pistol on that occasion. The complaint and information in this case were not filed until March 13, 1911, and trial had on March 24th, and the state would be permitted to prove the offense on any date within two years prior to the filing of the information. If appellant had been misled or surprised by the proof made in the case as to the date, or any other circumstance, he should have at once withdrawn his announcement, and moved to postpone the cause. The doctrine of "election" does not apply with equal force to prosecutions for a misdemeanor as it does to felony indictments. Stebbins v. State, 31 Tex. Cr. R. 296, 20 S. W. 552; Waddell v. State, 1 Tex. App. 720; Gage v. State, 9 Tex. App. 259; Day v. State, 14 Tex. App. 26; Alexander v. State, 27 Tex. App. 533, 11 S. W. 628. In Brown v. State, 38 Tex. Cr. R. 598, 44 S. W. 176, Judge Hurt says: "When the defendant takes the stand, he becomes a witness for all purposes. The state is not confined in cross-examination to matters elicited in chief." There was no error in permitting the...