Franklin v. State, 22910.

• Decision Date: 11 October 1944
• Docket Number: No. 22910.,22910.
• Citation: 183 S.W.2d 573
• Parties: FRANKLIN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 573

183 S.W.2d 573

FRANKLIN v. STATE.

No. 22910.

Court of Criminal Appeals of Texas.

October 11, 1944.

Rehearing Denied November 29, 1944.

Commissioners' Decision.

Appeal from Zavala County Court; R. S. Crawford, Judge.

M. J. Franklin was convicted of unlawfully carrying a pistol, and he appeals.

Affirmed.

Jno. T. Spann, of San Antonio, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Unlawfully carrying a pistol is the offense; the punishment, a fine of $100.

Peace officers apprehended appellant driving his automobile along a public highway. In the glove compartment of the car they found a pistol. This is the State's testimony and is sufficient to show a prima facie case of guilt. Art. 483, P.C.; Paulk v. State, 97 Tex.Cr.R. 415, 261 S.W. 779; Welch v. State, 97 Tex.Cr.R. 317, 262 S. W. 485; Armstrong v. State, 98 Tex.Cr.R. 335, 265 S.W. 701; and Spears v. State, 112 Tex.Cr.R. 506, 17 S.W.2d 809.

It is not every carrying of a pistol that is unlawful. The law (Art. 484, P.C.) recognizes certain exceptions, among which are peace officers and game wardens in the actual discharge of their duties. Also by construction, it is not unlawful for one to carry a pistol who does so under the honest belief that he is an officer and, as such, is authorized to do so. Barnett v. State, 89 Tex.Cr.R. 45, 229 S.W. 519.

Appellant, by his own testimony, corroborated by the testimony of disinterested witnesses, brought himself within the three exceptions noted. This defensive testimony was not challenged, contradicted, or impeached by the State.

The trial court made an affirmative presentation of the defensive theories, which the jury rejected in reaching its verdict.

Appellant insists that, under the circumstances mentioned, this court ought not to permit the conviction to stand, because the innocence of appellant of the offense charged was overwhelmingly established by the testimony of unimpeached and uncontradicted testimony of disinterested witnesses.

The question before us, then, is that, on the one hand, the State shows appellant was carrying a pistol on and about his person in violation of Article 483, P.C. while, on the other hand, the appellant— by the disinterested witnesses—shows that the carrying of the pistol was not unlawful.

What is the duty of this court under such circumstances? Article 706, C.C.P., makes the jury in a criminal case the "exclusive judges of the facts proved, and of the weight to be given to the testimony * * *." Article 848, C.C.P., empowers this court to reverse a judgment of conviction in a criminal case, upon the law as well as the facts.

In construing these statutes and the respective powers conferred thereby, it has been the consistent holding that this court will reverse a case on the insufficiency of the evidence only when the testimony, viewed in its strongest light from the standpoint of the State, fails to make guilt of the accused reasonably certain. Mason v. State, 108 Tex.Cr.R. 452, 1 S.W. 2d 283; 18 Tex.Jur., page 420, Sec. 299.

It is true, as contended by appellant, that from time to time cases have been reversed by this court wherein the opinion was expressed that we were unwilling to let the judgment of conviction stand under the facts, such as Lozano v. State, 138 Tex.Cr.R. 549, 137 S.W.2d 1031; and Villareal v. State, 140 Tex.Cr.R. 675, 146 S.W.2d 406. Yet, in such cases, the conclusion so reached was based upon the weakness of the State's testimony as showing guilt of the accused.

In no case has this court reversed a judgment of conviction upon the facts where the testimony of the State showed the guilt of the accused, because to do so would be to substitute our judgment for that...