Opinion
No. 600.
Decided November 4, 1893.
Unlawfully Carrying a Pistol — Evidence. — On a trial for unlawfully carrying a pistol, where the defense was, that defendant was returning the pistol to its owner, for whom he had repaired it, and the State was allowed to prove, over objection, that shortly before his arrest defendant had told an officer that a third party had his drum, and that he, the officer, would have him, defendant, to arrest before night, as he would do some dirt or get his drum; whereupon he walked away, and in a few minutes returned and the pistol was found upon his person: Held, that the evidence was not obnoxious to the objections that it was irrelevant and not res gestæ, and it was further admissible to rebut the defense interposed.
APPEAL from the County Court of Fort Bend. Tried below before Hon. M.J. HICKEY, County Judge.
Appellant was prosecuted, by information, for unlawfully carrying a pistol, was convicted, and his punishment assessed at a fine of $25.
A statement of the facts is unnecessary.
No brief on file for appellant.
R.L. Henry, Assistant Attorney-General, for the State.
Appellant was convicted of carrying a pistol, in contravention of the statute.
The officer making the arrest of defendant was permitted to testify, over objection, that shortly before said arrest defendant asked witness, "If a man had the right to keep another's property?" Upon receiving an answer in the negative, defendant stated, "that one Clarence had his, defendant's, drum, and that he, witness, would have him, defendant, to arrest before night, as he would do some dirt, or get his drum. That defendant then walked away, and was gone some minutes. When he returned to where witness was he found a pistol on defendant." The grounds of objection were, that it was irrelevant, not res gestæ, and was calculated to injure defendant. The objections are not well taken, and were admissible to rebut the claim of defendant that he was returning the pistol to its owner, for whom he had repaired it. Defendant denied having the pistol at the time it was taken from him. He was also found with a bottle of whisky.
The evidence warranted the conviction. The judgment is affirmed.
Affirmed.
Judges all present and concurring.