Solosky v. State

• Citation: 236 S.W. 742
• Decision Date: 11 January 1922
• Docket Number: (No. 6519.)
• Parties: SOLOSKY v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

236 S.W. 742

SOLOSKY v. STATE.

(No. 6519.)

Court of Criminal Appeals of Texas.

January 11, 1922.

Appeal from Harris County Court at Law; John W. Lewis, Judge.

Antonio Solosky was convicted of unlawfully carrying a pistol, and he appeals. Affirmed.

J. P. Rogers, of Houston, and J. M. Gibson, of Richmond, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for unlawfully carrying a pistol; punishment fixed at confinement in the county jail for 60 days.

The defense urged is that it was on his own premises. Appellant and his wife had been separated. There were minor children, and in the divorce decree the wife was awarded the custody of the children and possession of the residence, which was community property. The decree contained a provision that the wife should have full, complete, and exclusive control of the premises and the rents and revenues therefrom for the purpose of supporting, maintaining and educating the children during their minority. In awarding the custody of the children to the wife, it is stated in the decree that he shall have the right to see and visit them so long as he does not interfere with the management of the children or the property.

The appellant appeared upon the porch of the house occupied by his wife. Hearing some one, she opened the door, whereupon appellant immediately drew a pistol and pointed it at her. Her son-in-law appeared, and took it away from him; appellant then drew a knife and attempted to open it, which was also wrested from him by the son-in-law. Appellant then went into the yard and picked up an ax with which he attempted to strike his wife, but the son-in-law interfered.

In a bill of exceptions the proof of the acts of the appellant other than the possession of the pistol were objected to upon the ground that they were irrelevant and prejudicial. At least a part of the acts of the appellant were so intermingled with those that it was necessary for the state to prove, in order to make out its case, that the development of the essential facts would have been difficult, if not impossible, without repealing the acts of the appellant in the use of the pistol. In other words, they were clearly within the exception to the rule excluding other offenses which permits the proof of other acts of the accused which are a part of the res gestæ, although such acts may constitute a different offense from that charged in the indictment. Underhill on Crim. Evidence, § 88; Wharton's Crim. Ev. vol. 1, p. 228, and notes. The admissibility of that part of the transaction relating to the attempted use of the knife and ax is not so clear as that which reveals his attempted use of the pistol. Assuming that the evidence of those matters should have been excluded, upon an objection properly made, we think the matter is not so presented as to authorize review. The objection urged was that the testimony was irrelevant and prejudicial. This objection has been often held too general except as against evidence which was obviously admissible for no purpose. McGrath v. State, 35 Tex. Cr. R. 413, 34 S. W. 127, 941; Hamblin v. State, 41 Tex. Cr. R. 139, 50 S. W. 1019, 51 S. W. 1111; Ball v. State, 44 Tex. Cr. R. 186, 69 S. W. 512; Carter v. State, 40 Tex. Cr. R. 229, 47 S. W. 979, 49 S. W. 74, 619; Barfield v. State, 41 Tex. Cr. R. 20, 51 S. W. 908; Neely v. State, 56 S. W. 625.

The bill of exceptions are inadequate to present the exclusion of a part of the testimony adverted to for the additional reason that the objection was addressed to the proof of all the acts of the appellant, some of which were clearly admissible. Under such circumstances the objection...