French v. State, 16559.

• Decision Date: 21 March 1934
• Docket Number: No. 16559.,16559.
• Citation: 70 S.W.2d 1002
• Parties: FRENCH v. STATE.
• Court: Texas Court of Criminal Appeals

70 S.W.2d 1002

FRENCH v. STATE.

No. 16559.

Court of Criminal Appeals of Texas.

March 21, 1934.

Rehearing Denied May 9, 1934.

Commissioners' Decision.

Appeal from Kerr County Court; John S. Atkins, Judge.

Herman French was convicted of carrying a pistol, and he appeals.

Affirmed.

W. C. Baker, of Kerrville, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

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

Appellant insists that the evidence is insufficient. We are unable to agree with him. State's witness Isaac Conn testified that he saw appellant at his (the witness') filling station at 3 o'clock in the morning of December 19, 1932, and that he had a pistol on his person. He testified further that this occurred on the morning after the post office at Hunt was burglarized. Upon cross-examination he testified that he did not see anything except the handle of the pistol. On his direct examination appellant testified that the pistol belonged to Robert Cobb, who had delivered it to him (appellant) for the purpose of repairing it; that the trigger spring was broken; that he had been unable to repair it and was taking it back to Mr. Cobb at the time he was seen carrying it at the filling station of the witness Conn; that the pistol would not shoot. Upon his cross-examination, appellant testified in effect that he burglarized the post office at Hunt shortly before he was seen by the witness Conn at the filling station. We quote from his testimony as follows: "Yes, this was the morning after the post office had been broken into. No, I did not have that pistol for the purpose of robbing the post office. No, the pistol would not shoot. The trigger spring was broken all the time it was in my possession. I put it on my belt because I had forgotten it and left it in the car once before, and I put it on me when I went to Mr. Conn's to be sure I would not forget it. I did not fix it because I did not have the material with which to fix it. I suppose you could have taken a rock or something and hit the trigger and discharged the cartridge. * * * There were no cartridges in the pistol at any time while it was in my possession." The testimony last quoted was given after appellant had testified that he had pleaded guilty to burglarizing the post office on the occasion in question. Mr. Cobb testified that he had delivered his pistol to appellant two or three days before December 19, 1932, for the purpose of having it repaired, and that appellant afterwards returned the pistol to him without having repaired it. He testified further that the pistol would not shoot.

Appellant waived a trial by jury. The trial court was warranted in concluding that the pistol possessed by appellant at 3 o'clock in the morning shortly after he had burglarized the post office at Hunt was in good working order. One who had come from the scene of a burglary he had committed would not likely be carrying a pistol he was unable to shoot. The trial judge probably concluded that appellant's statement of the matter was unreasonable and intrinsically weak. Under the circumstances, he was authorized to reject appellant's version. It...