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[Cite as Fitzgerald v. State, 52 Tex. App. 265,
106 S.W. 365 (1907).]
FITZGERALD v. STATE.
(Court of Criminal Appeals of Texas. Dec. 11,
Broken Pistol for Repairs.
A person who carries a broken pistol in a useless
condition to a blacksmith for repairs, and finds the blacksmith absent, is not
guilty of carrying a pistol when he takes it away with him and later returns
with it to the blacksmith.
Appeal from District Court, Shelby County; James Q.
J. A. Fitzgerald was convicted of carrying a pistol, and appeals.
Reversed and remanded.
Bryarly, Carter, Walker & Chamness, for
appellant. F. J. McCord, Asst. Atty. Gen., for the State.
DAVIDSON, P. J. Appellant was convicted of carrying
a pistol. The state's case is that appellant was in the town of Center, Shelby
county, loading his wagon with some purchases he had made from a store, when one
of the proprietors observed a pistol in his coat pocket. He took him to one side
and called his attention to it. Appellant replied that it was out of repair and
he brought it to the shop to be repaired. In support of this statement, himself
and his son testified that the pistol was out of repair and could not be used,
and that in going to the town of Center he brought the pistol to Shelbyville to
a blacksmith, who repaired pistols, for the purpose of having it repaired; that
it was broken, and not in a condition to shoot. He proved by the blacksmith that
he (appellant) did leave the pistol, and that he repaired it, and that it was
practically in a useless condition. It was also shown that in bringing it from
his home to Shelbyville, en route to Center, appellant stopped at the blacksmith
shop to leave it, but the blacksmith was out of town and could not be found;
that he went on to Center, carrying the pistol with him, having it in his wagon
among effects carried in the wagon; that when he got ready to leave Center he
took it out of the wagon and put it in his pocket, so that he would have it
convenient to leave with the blacksmith, and not have to go through the wagon
and disturb things to get it out. This is practically the case.
The conviction seems to be predicated upon the theory that appellant
had diverted himself from the proper line of travel, and that, therefore, he was
guilty of carrying a pistol. Under some circumstances, as decided in Stilly v. State, 27 Tex. App. 445, 11 S.W. 458, 11 Am.
St. Rep. 201, this would constitute a violation of the law; but these
facts do not bring the case within the rule announced in the Stilly Case. There
was no excuse offered by appellant, and none attempted to be shown, in
justification of his carrying the pistol, if it had been a pistol as
contemplated by the statute. The contention here is sustained by the evidence,
as we understand it, that appellant had a broken pistol, out of repair, and that
he carried it to the shop for the purpose of having it repaired, and, failing to
find the blacksmith at home, carried it on, and returned to the blacksmith shop
and did have it repaired. Appellant had a right to have his pistol repaired, and
the right to carry it to the party who could do the work. This was not a
violation of the law, and, if it was such a pistol as was not prohibited by the
statute from being carried, the fact that he may have gone to Center and carried
it with him would make no difference. It is only such pistol as is contemplated
by the statute that is prohibited from being carried. We are of opinion that the
facts do not justify this conviction.
The judgment is reversed, and the cause is remanded.
HENDERSON, J., absent.