Webb v. State, 41923

• Decision Date: 05 March 1969
• Docket Number: No. 41923,41923
• Citation: 439 S.W.2d 342
• Parties: Neal Simpson WEBB, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 342

439 S.W.2d 342

Neal Simpson WEBB, Appellant, v. The STATE of Texas, Appellee.

No. 41923.

Court of Criminal Appeals of Texas.

March 5, 1969.

Kerr, Fitz-Gerald & Kerr, by Wm. Monroe Kerr, James Fitz-Gerald III, Midland, for appellant.

James A. Mashburn, Dist. Atty., Robert F. Freeman, Asst. Dist. Atty., Midland, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is possession of a .38 caliber revolver in violation of Art. 489c, Vernon's Ann.P.C., with three prior convictions alleged for enhancement; the punishment, life imprisonment.

The evidence shows that on the occasion in question, appellant was found with a pistol in his hand, away from his residence. A prior conviction for burglary, for which appellant served time in the penitentiary, was also shown. In defense, appellant offered evidence that he was in fear of his life because of threats made to him and that such fear justified his possession of the pistol as an incident to his right of self-defense, and that he assaulted the person who he thought was the threatening party.

Appellant's first five grounds of error relate to the trial court's failure to charge the jury on the defensive issue of self-defense and the right to bear arms in self-defense.

Art. 489c provides, in part:

'Section 1. It shall be unlawful for any person who has been convicted of burglary or robbery, or of a felony involving an act of violence with a firearm under the laws of the United States or of the State of Texas, or of any other state, and who has served a term in the penitentiary for such conviction, to have in his possession away from the premises upon which he lives any pistol, revolver or any other firearm capable of being concealed upon the person.'

The constitutionality of this article, while not challenged by appellant, has been passed upon in our recent cases of Salazar v. State, Tex.Cr.App., 423 S.W.2d 297, and Castillo v. State, Tex.Cr.App., 411 S.W.2d 741. The right of appellant to arm himself in self-defense, as secured to him by Art. 1, Section 23 of the Texas Constitution, Vernon's Ann.St., is in no way infringed by Art. 489c, supra, because appellant might have armed himself with any weapon not prohibited in the article.

While our Constitutional provision relating to the bearing of arms, Art. 1, Section 23, is not in the exact terms of the II Amendment to the United States Constitution, a review of two Federal cases in helpful. In United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206, the Supreme Court held that a Congressional act which prohibited the interstate transportation of a shotgun having a barrel of less than eighteen inches in length did not violate the II Amendment to the United States Constitution.

In Cases v. United States, 1 Cir., 131 F.2d 916, we find the following:

'The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep ane bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed'.'

And the Supreme Court of this State in State v. Duke, 42 Tex. 455 (1875), in considering an Article which was a predecessor of our present Art. 483 V.A.P.C., said:

'The question for our decision is the constitutionality of the Act under which this indictment was proved. It undertakes to regulate the place...