Tolbert v. State

246 S.W.2d 896 (1952)

TOLBERT v. STATE.

No. 25656.

Court of Criminal Appeals of Texas.

January 23, 1952.

Rehearing Denied March 12, 1952.

*897 Mahlon L. Walters, Jefferson, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

MORRISON, Judge.

The offense is unlawfully carrying a pistol; the punishment, a fine of $100.00.

Three State's witnesses testified that they saw appellant near the door of the cafe with a pistol in his hand.

Appellant testified, admitting that he had been at the cafe on the time in question, that he had had an argument with the proprietor over the nickelodian but denied that he had a pistol of any kind with him on that occasion.

Having testified, he thereby established his defensive issues.

The great majority of the bills of exception complain of the court's failure to charge that the pistol carried by appellant must have been proven to be one capable of being fired and one possessed of all the component parts of a pistol.

Bill of exception No. 8 complains that he was limited in his argument of the above contention to the jury.

We do not find such issue to have been raised by the evidence and therefore conclude that the trial court acted properly.

Finding no reversible error, the judgment of the trial court is affirmed.

On Appellant's Motion for Rehearing

DAVIDSON, Commissioner.

The witnesses for the state testified that the appellant had on his person a pistol at the time and place mentioned. This testimony made a prima facie case against the appellant. It was not the burden of the state to go further and show that the pistol was a pistol within the meaning of the statute making unlawful the carrying of a pistol.

If the pistol appellant was alleged to have been carrying was not, in fact, such a weapon, the appellant should have so shown as a defense.

The appellant's motion for rehearing is overruled.

Opinion approved by the Court.