Vincent v. State
| Decision Date | 10 December 1913 |
| Citation | 162 S.W. 840 |
| Parties | VINCENT v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Harris County Court, at Law; C. C. Wren, Judge.
Will Vincent was convicted of unlawfully carrying a pistol, and he appeals. Affirmed.
R. H. Holland, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
Appellant was tried before the court without a jury, charged with unlawfully carrying a pistol, and his punishment fixed at the lowest prescribed by law.
The only contention by appellant is that the evidence is insufficient to sustain the conviction, or that the evidence shows, without contradiction, that he had the right to carry a pistol at the time and place he did so, and should have been acquitted.
Appellant has a bill of exception in the record making said contentions wherein he gives the evidence in full, heard on the trial. The court, in approving the bill, qualified it by stating that he did not believe the defendant and his witnesses' testimony to be true.
It is unnecessary to give any extended statement of the testimony. The state proved by uncontradicted testimony that the appellant had the pistol on or about his person at the time and place charged in the indictment. In fact, the appellant and his wife both positively so testified, in addition to the state's testimony.
The appellant testified that on August 17, 1912, he spoke to Dan Carmichael, with whom he was working in the railroad shops at Houston, and made arrangements to borrow from him $10 and secure the loan by the pawn of his pistol; that Carmichael at that time agreed to make him the loan of $10 and take his pistol as security; that on August 19th he took the pistol from his home to the railroad shops for the sole purpose of pawning it to Carmichael for said loan; that, when he then took the matter up with Carmichael, Carmichael told him he could not loan him the $10, but that he would loan him $2 without any security, and that he could take his pistol back to his home; that he and Carmichael then examined the pistol and found it rusty and the cylinder would not revolve, cleaned it up, and got it in good working condition, and that he left it there until the next day; that as he went to leave home on that morning, the day on which he was charged with carrying a pistol, his wife told him that some sister of the lodge to which she and the sister belonged had made some charges against her and a negro named Davis for improper conduct and violating some rules of the order, and that she was going there that evening between 5 and 6 o'clock to have the charges tried, or cleaned up, and for him to stop by there as he returned from work and call for her and she would go home with him; that the hall was on his direct route back and forth from his home to his place of work; that he always quit work at half past 5 in the evening and had to wash, which he did, and got his lunch basket, and then took his pistol with him; that, when he got to the hall with his pistol, he waited some ten minutes or more for his wife to come out, and that he sent some sister of the lodge in to tell her to come; after he had been waiting for this ten minutes or longer, he heard his wife screaming, holloing, and calling for him; that at that time said negro Davis appeared at an opening of the lodge hall, and began to shoot at him, and he got his six-shooter out and returned his fire, shooting at Davis twice; neither hit the other; that he would not have stopped at said hall on this occasion if it had not been the request of his wife that morning to do so.
His wife testified and in some particulars corroborated his testimony. However, she says she told him that some woman had made charges against her about violating some rules of her lodge, and she was going there that evening between 5 and 6 o'clock to clear up the charges, and that she knew her husband would pass along there about that time, and she told him to stop for her at that time, and she would go on home with him; that she was inside of the hall along about that time, and a woman and a man, evidently this man Davis, began beating her and pulled her hair and cursed her; and that she screamed and holloed for her husband as loud as she could, and he responded to her call, and the shooting took place.
Carmichael testified corroborating appellant about the contemplated loan and pawn of the pistol to him to secure it, the cleaning it up at the particular time it was, and putting it in first-class shooting condition, and that appellant took it with him on that particular evening to take the pistol back home.
Judge DAVIDSON has written and presented in consultation an opinion herein wherein he contends that as the testimony was uncontradicted about said proposed loan and pawn of the pistol, and that said hall was on the direct route of the appellant between his home and place of work, and that he passed there back and forth from day to day, and as the state introduced no evidence to contradict appellant and his witnesses in these matters, a jury trying the case, nor the court in this instance who tried it without a jury, could not arbitrarily discard their testimony. And that for the purpose of pawning his pistol appellant had the right to carry it back and forth from his home to his place of business, and that having failed to carry it back home, and the fact that he incidentally got into trouble going home, would not militate against the fact that he had a right to carry the pistol home.
We think Judge DAVIDSON has misapprehended the material facts on these questions. It might be that a man would have the right to take his pistol from his home to his place of business to pawn it in a business transaction, and, failing in it, to carry it back home, without violating the law, yet the evidence in this case is such as the court unquestionably could believe, as he did, that appellant did not carry this pistol back and forth for that purpose, and his, his wife's, and his witness Carmichael's testimony on that point was untrue; and the testimony would clearly authorize the court to believe that the appellant did not carry his pistol to his place of work for that purpose, but that he carried it there for the purpose of fixing it up in first-class shooting condition; and that he did so on this particular occasion so that he could be on hand with it when his wife had her trial and, when called upon, produce it and shoot Davis. He says his wife told him some sister had made charges against her for improper conduct with said negro man Davis, and the court could well believe he carried the pistol on that occasion for that purpose, and not for the purpose of taking it back home, failing in pawning it. In other words, it shows and justified the court to find that he anticipated a row between his wife and Davis and the sister who had preferred charges against her, and that he prepared this pistol and took it to that place at that time for the purpose of having it ready to shoot down his wife's accusers when she called on him for that purpose, and that she did call upon him, knowing that he would be there and was there at the time, and that he prepared himself for the scrap and took his pistol with him for no other purpose; and true to this purpose and intention he promptly responded with his six-shooter, firing at her antagonist twice, when she called for him.
All these witnesses were before the judge of the lower court personally. He saw them, heard their testimony, their manner of testifying, and all the facts and circumstances connected therewith. The law makes him, and not this court,...
To continue reading
Request your trial