Spears v. State

• Decision Date: 17 April 1929
• Docket Number: (No. 12485.)
• Citation: 17 S.W.2d 809
• Parties: SPEARS v. STATE.
• Court: Texas Court of Criminal Appeals

17 S.W.2d 809

SPEARS v. STATE.

(No. 12485.)

Court of Criminal Appeals of Texas.

April 17, 1929.

Rehearing Denied May 29, 1929.

Commissioners' Decision.

Appeal from Hill County Court; Olin Culberson, Judge.

Tom Spears was convicted of unlawfully carrying a pistol, and he appeals. Affirmed.

Wear, Stollenwerck & Wear, of Hillsboro, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

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

Officers searched an automobile driven by appellant and found therein a pistol in the pocket of the door on the right-hand side, At the time the search was made the car was parked on a street in front of a garage in the city of Hillsboro. Appellant was sitting on the left under the steering wheel, and a companion, Nick Beavers, was sitting on the right side of the car near the door where the pistol was found. The day after the search was made appellant went to one of the officers and asked him how long it would be before he could get his pistol.

The sufficiency of the evidence is challenged, it being the contention of appellant that the proof fails to show that he was carrying a pistol on or about his person as alleged in the complaint and information. In short we understand appellant's position to be that article 483 of our Penal Code 1925 does not make it an offense to carry a pistol in the pocket of an automobile. In support of his position appellant cites the case of Cathey v. State, 23, Tex. App. 492, 5 S. W. 137. There it was held that the statute did not make it an offense to carry a pistol in a wagon. In the case of Welch v. State, 97 Tex. Cr. R. 617, 262 S. W. 485, the accused was driving a Ford touring car on a public road. Upon being searched a pistol was found in a hand bag which was on the floor of the car between the front and back seats. It was urged that the pistol was not "about" the person in contemplation of article 483, P. C. In overruling the appellant's contention the court cited the following authorities: Garrett v. State (Tex. Cr. App.) 25 S. W. 285; Hill v. State, 50 Tex. Cr. R. 619, 100 S. W. 384; Leonard v. State, 56 Tex. Cr. R. 84, 119 S. W. 98; Wagner v. State, 80 Tex. Cr. R. 66, 188 S. W. 1001; Mayfield v. State, 75 Tex. Cr. R. 103, 170 S. W. 308; Roberson v. State, 88 Tex. Cr. R. 587, 228 S. W. 236; Emerson v. State, 80 Tex. Cr. R. 354, 190 S. W. 485. Reference was made in the opinion to the fact that the following meaning of the word "about," as used in the statute, was adopted from the state's brief with approval in Wagner's Case, supra, and again indorsed in Emerson's Case, supra: "The Legislature must have meant something when it used the words `on or about the person,' and on principle using the word `about' in its ordinary meaning, taking into consideration the context and subject-matter relative to which it is employed, the word, not being specially defined, must, as we believe, be held to mean, within the pistol statute, near by, close at hand, convenient of access, and within such distance of the party so having it as that such party could without materially changing his position get his hand on it; otherwise every person having a vehicle would be authorized to keep prohibited weapons in his vehicle and within reach of his hand, ready for action. * * *"

After quoting from Wagner's Case as above, Judge Hawkins said (97 Tex. Cr. R. 617, 262 S. W. 485): "It is not apparent why a pistol in a hand-bag situated as was the one in the present case is not even more accessible than would be one under the seat or cushion of a buggy." The conclusion was there reached that the evidence was sufficient to support the conviction.

Appellant objected to the testimony of the officers touching the result of the search of his car, the objection being that the search was without warrant and that facts and circumstances sufficient to constitute probable cause had not been shown. In the absence of the jury, the officers testified that they had been advised by credible persons that appellant and Nick Beavers were drunk; that Beavers was displaying a pistol; and that said pistol was in appellant's car. These facts were sufficient to authorize a search without warrant. Article 487, P. C. 1925 provides: "Any person violating any article of this chapter may be arrested without warrant by any peace officer and carried before the nearest justice of the peace. Any peace officer who shall fail or refuse to arrest such person on his own knowledge, or upon information from some reliable person, shall be fined not exceeding five hundred dollars."

We have made application of the provisions of this article in numerous cases. In the recent case of Salasar v. State, 108 Tex. Cr. R. 381, 1 S.W.(2d) 314, the view was expressed that the announcement of the decisions wherein such application was made...