Wagner v. State

• Decision Date: 11 October 1916
• Docket Number: (No. 4151.)
• Citation: 188 S.W. 1001
• Parties: WAGNER v. STATE.
• Court: Texas Court of Criminal Appeals

188 S.W. 1001

WAGNER v. STATE.

(No. 4151.)

Court of Criminal Appeals of Texas.

October 11, 1916.

Appeal from Harris County Court, at Law; Murray B. Jones, Judge.

R. G. Wagner was convicted of carrying a pistol about his person, and appeals. Affirmed.

Menefee & York, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., Frank Williford, Jr., and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was charged with carrying a pistol about his person and on his trial before a jury was found guilty and his punishment assessed at a fine of $100.

The brief filed by state's counsel so fully presents the issues, we adopt it and the reasoning as to why the case should be affirmed:

"1. No charge of the court nor any requested instructions appear in the record, and the law is that when a party is only charged with and convicted of a misdemeanor and no charge appears in the record on appeal, it will be presumed that a verbal charge was given by consent of the parties, or that no charge was given, and, if the former, that the charge so given was correct. Bowden v. State, 2 Tex. App. 56. Newton v. State, 3 Tex. App. 245. Sullivan v. State, 61 Tex. Cr. R. 658, 136 S. W. 456. Branch's Annotated Penal Code, § 1596, page 939. In the Sullivan Case, supra, it was held that where no exceptions were taken to a verbal charge and no special charges were requested, this court would conclusively presume that the charge covered every phase of the case necessary or proper to be submitted. It follows, therefore, that the unverified complaint to the charge of the court cannot be considered.

"2. There are no bills of exception in the record, and hence the complaint of appellant that the court erred in admitting, over objection, testimony that he resisted arrest and tried to break away and get to his automobile where the pistol was cannot be reviewed on appeal. Objections to the admission or rejection of testimony should be presented by bill of exceptions. Branch's Annotated Penal Code, page 132, par. 6.

"3. The only question presented for review is the sufficiency of the evidence. The only witness for the state testified that he saw appellant drive an automobile up to the depot; that about 3:30 o'clock p. m. he arrested appellant after some difficulty, that appellant fought and tried to break away and get back to his automobile, which 20 to 30 minutes before he had driven up to the depot, that after placing him under arrest the witness went back and looked in the automobile and saw a pistol pushed down behind the front cushion of said automobile and identified the pistol produced in court as the pistol obtained from said automobile.

"Appellant did not testify. The only witness for appellant testified that appellant was a jitney driver, and that witness had ridden in his car about 1 o'clock on the day of his arrest. When witness got in the car, about a mile from town, there was a passenger on the front seat with appellant, and the two appeared to be under the influence of liquor. Witness further testified that this unknown passenger in a few minutes pulled a pistol from his pocket and flourished it, finally pushing it down behind him after witness cautioned him; that after the passenger alighted witness required appellant to ride him to the police station, where witness got out of the car; that thereupon appellant asked witness what he should do with the pistol, witness replying, `Take it home with you or throw it away or do anything you want to do with it.' It was not shown that appellant made any reply. Witness fixed the time of this conversation as being about 1 o'clock. The distance from the depot where appellant was arrested to the police station is about 11 blocks, and appellant resided in an addition to the city of Houston which is in the same general direction from the police station as said depot. Witness further testified that he was not positive that the pistol produced in court was the same pistol had by the drunken passenger, but that it looked like it, and was in many respects similar. Both witnesses testified that they did not see appellant have the pistol in his actual physical possession.

"This is, in substance, all of the testimony adduced, and we are left in the dark as to whether the court submitted to the jury the issue as to whether appellant was on his way home, and the facts do not disclose that appellant was on his way home, since it is shown he had stopped his car at the depot. Nor is it shown for what purpose he stopped at the depot, nor how long he had been there, nor what he had done, nor where he had been since the conversation at 1 o'clock and his arrest more than two hours later. With only 11 blocks from the police station to the depot he is found there, more than two hours later with the pistol behind the cushion on which he sat to drive the car and he...