Smith v. State

• Citation: 85 S.W. 1078
• Parties: SMITH v. STATE.
• Decision Date: 17 December 1904
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 1078

85 S.W. 1078

SMITH v. STATE.

Court of Criminal Appeals of Texas.

December 17, 1904.

On Rehearing, March 23, 1905.

Appeal from Waller County Court; J. D. Harvey, Judge.

Ben Smith was convicted of carrying a pistol, and he appeals. Affirmed.

A. G. Lipscomb and W. J. Poole, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of carrying a pistol, and his punishment assessed at a fine of $25. The evidence shows that he was en route from his home to Hempstead, and carried the pistol in his buggy. He had gone on the bond of Ike Johnson for his appearance before the district court in a felony case. Ike Johnson and another man were in a wagon, and, as appellant approached the wagon, Johnson jumped out and started to run. Appellant got his pistol and fired it in the air. Johnson fired one shot at appellant and ran away.

Appellant proposed to show that he had been informed Johnson intended to forfeit his bond, and that he had gone to the sheriff in regard to the matter, and had been told by the sheriff to bring in and surrender Johnson, and thus secure release from the bond. He set up this as a reason why he had the pistol; that is, he desired to arrest Johnson and carry him to the sheriff. The evidence was excluded, and properly. The statute provides how a surrender by a party can be made of the principal; that is, there must be an affidavit made, and warrant issued by the proper court or magistrate. This was not done, nor sought to be done. This conversation occurred two or three days prior to the time appellant had the pistol.

Appellant also desired to prove that he had been informed, on the morning before he was seen with the pistol, that Johnson had stolen some of his cotton, and while en route to town he overtook Johnson and proposed to arrest him. So it seems there are two questions appellant sought to rely on as justifying him in carrying the pistol: First, to arrest Johnson, surrender him, and be released from the bond; and, second, to arrest Johnson on the information he had that Johnson had stolen some of his cotton. Neither of these grounds affords an excuse or reason why appellant carried the pistol. He was not deputized by any court or magistrate to make the arrest and carry the pistol. Nor did he propose to show that the sheriff had so authorized him. The sheriff had not made him a deputy, nor undertaken to do so. He was not a peace officer, nor a member of the sheriff's posse summoned to assist the sheriff in executing process. Neither of these grounds affords any excuse for his carrying the pistol. It was admitted by appellant on the witness stand that Johnson did not have the cotton at the time he overtook him in the wagon. The court submitted the issue of appellant's intent in carrying the pistol; that is, if he had no intention of violating the law, he should be acquitted, and that this intent or want of intent would not protect him unless he had reasonable grounds for believing he had the right to carry the pistol. This charge was favorable to appellant, because not called for by the facts. He had no grounds, reasonable or otherwise, legally speaking, for carrying the pistol, and no fact upon which to predicate such belief was introduced.

We find no error in the record, and the judgment is affirmed.

On Rehearing.

Appellant contends the court was in error in affirming the judgment at the recent Tyler term, and that the judgment should be reversed. A sufficient statement of the case is found in the original opinion.

Appellant contends that he had the right to arrest and deliver to the sheriff the alleged injured party, because he (appel...