Deuschle v. State

• Decision Date: 02 November 1927
• Docket Number: (No. 11086.)
• Citation: 4 S.W.2d 559
• Parties: DEUSCHLE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 559

4 S.W.2d 559

DEUSCHLE v. STATE.

(No. 11086.)

Court of Criminal Appeals of Texas.

November 2, 1927.

State's Rehearing Granted December 14, 1927.

Rehearing Denied April 11, 1928.

Commissioners' Decision.

Appeal from District Court, Kaufman County; Joel R. Bond, Judge.

Annie Deuschle was convicted of assault with a prohibited weapon, and she appeals. Affirmed.

Morris Brin and M. F. Cate, both of Terrell, and Wynne & Wynne, of Kaufman, for appellant.

M. Ashworth, Co. Atty., of Kaufman, and A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Appellant was convicted under article 1151 of the Penal Code 1925; the indictment charging that while unlawfully carrying on and about her person a pistol she unlawfully and willfully made an assault upon Martha Weiland.

Under this indictment it devolved upon the state to show (1) that appellant unlawfully assaulted the prosecuting witness with a pistol, and (2) that the pistol was then and there being unlawfully carried by appellant. Article 1151, P. C.; Reneau v. State, 106 Tex. Cr. R. 250, 291 S. W. 899. The evidence we deem sufficient upon the first of these issues and that upon the second issue was substantially as follows: A public road ran through the homestead of appellant; the house, barn, and cow lot were on one side of this road and a cow pasture in which the milch cows were kept was immediately opposite on the other side of the road; there being about 100 acres on one side of the road and about 10 acres on the other side. The appellant had a pistol on the date of the offense in the public road between her residence and the cow pasture and on said occasion, the state's witnesses testified, fired two shots towards the prosecuting witness, who was passing in an automobile. The testimony for appellant shows that she had been across the road after the cows and returning fired a shot at a rabbit. It further shows the impossibility of appellant's using her homestead without using the public road, the title to which road in the public it seems amounted only to an easement, the fee remaining in the appellant's husband. This case turns upon the sufficiency of the above evidence to show that appellant was unlawfully carrying the pistol when the alleged assault was made. Judge Hurt summarily disposes of a similar contention in the case of Ball v. State (Tex. Cr. App.) 25 S. W. 627, in the following language:

"Appellant carried the pistol on a public road. The road ran through the premises of Mr. Stanford. That point of the road at which appellant carried the pistol was situated on Stanford's premises — his homestead. Appellant lived with Stanford; he had no other home. Did he violate the statute prohibiting the carrying of a pistol? He did not."

To the same effect is Ross v. State (Tex. Cr. App.) 28 S. W. 199. See, also, the following cases: Mendez v. State, 94 Tex. Cr. R. 272, 250 S. W. 680; Parker v. State, 76 Tex. Cr. R. 260, 174 S. W. 343. Under these authorities the evidence was clearly insufficient to show the existence of one of the indispensable elements of the offense denounced in article 1151, P. C.

Article 483, P. C., makes the carrying of a pistol unlawful and article 484, P. C., excepts out of the operation of article 483, peace officers, the carrying of arms on one's own premises, persons traveling, and others. One whom the facts place clearly within any of the exceptions contained in article 484, P. C., cannot be prosecuted for the offense of unlawfully carrying a pistol, whatever may have been his intent in carrying it. Herein lies the distinction between cases like Moore v. State, 86 Tex. Cr. R. 502, 217 S. W. 1036, and the instant case. The evidence shows appellant within one of said exceptions, viz.: The carrying of a pistol on one's own premises. This being established, the state's case fails under the indictment herein.

It does not follow, of course, that the appellant has violated no law under the testimony of the state's witnesses; but, the prosecution instituted being for an offense which demanded proof beyond a reasonable doubt of the unlawful carrying of a pistol, and this proof in our opinion being insufficient, the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On State's Motion for Rehearing.

MARTIN, J.

In our original opinion we reluctantly followed the case of Ball v. State (Tex. Cr. App.) 25 S. W. 627, which was interpreted by us to mean that a public road running through a homestead was a part of the premises, as that word is used in article 484 of the Penal Code, so that a person in possession of same charged with unlawfully carrying a pistol came within one of the exemptions named in said article. The facts of the Ball Case are meagerly stated and perhaps a fuller statement might disclose that it is not out of line with what upon fuller consideration we now believe is the correct rule in cases of this character. If our original interpretation be correct then the Ball Case is unsound and any express or implied holding of same as interpreted above is overruled.

One of the jury questions in this case was whether or not appellant had the pistol at the time of the assault for an unlawful purpose. She had the right to the full use of the public road in question in the performance of any act or thing pertaining to the legitimate use and enjoyment of her premises and when so using it did not violate the pistol law in having with her such a weapon on the public road. It would, we think, however, be stating the rule too broadly and be provocative of too much mischief to say that she would have the right to carry prohibited weapons upon such a road irrespective of her intent and purpose in having same. Athough a public road running through a homestead may be a part of the premises for the purpose of their legitimate use and enjoyment by the owner, the real right of possession to such road belongs in the public so as to exclude its use by such owner for an illegal purpose not in any way connected with the right of use and possession of the premises through which the road runs.

Section 23 of the Bill of Rights to our state Constitution provides:

"Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the state; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."

In response to and in furtherance of said permissive clause, the Legislature to prevent crime has prohibited the carrying of certain arms with the exemptions set out in article 484 of the Penal Code. This class needs no further authority than the terms of the statute as a defense and having the right by law to carry a pistol; the purpose in carrying same is immaterial. There is, however, a second class, not defined by statute, which under our decision are exempted from the operation of the pistol law. Their right to carry a pistol may be said in a general way to be an incident of their constitutional right to own, possess, and bear arms. The following Texas cases illustrate this class:

A weapon may be lawfully carried to one's home, place of business, or to a repair shop for the purpose of repairing it. Mangum v. State (Tex. Cr. App.) 90 S. W. 31; Roberts v. State, 60 Tex. Cr. R. 112, 131 S. W. 321; Morris v. State, 73 Tex. Cr. R. 67, 163 S. W. 709; Fitzgerald v. State, 52 Tex. Cr. R. 266, 106 S. W. 365, 124 Am. St. Rep. 1095. Or a pistol may be carried from store to store in search of ammunition. Waddell v. State, 37 Tex. 354. Or at the direction of his employer an employee may carry to another store. Huff v. State, 51 Tex. Cr. R. 441, 102 S. W. 407. He...