Opinion
No. 4097.
Decided May 31, 1916.
1. — Unlawfully Carrying Pistol — Transcript — Misdemeanor.
The law requires that the statement of facts must be copied in the transcript in misdemeanor cases, but in felony cases the original must be sent up to this court. However, this transcript may be corrected on proper application so that the statement of facts may be brought properly before this court.
2. — Same — Requested Charge — Traveler — Disturbing Peace.
Where defendant was on trial for unlawfully carrying a pistol, a requested charge by the State that even though the jury found defendant was a traveler, yet if he disturbed the peace or engaged in any other unlawful purpose he would be guilty of unlawfully carrying a pistol, the same was reversible error, as defendant was not on trial for disturbing the peace.
Appeal from the County Court of Grimes. Tried below before the Hon. Reid Rikard.
Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of one hundred dollars.
The opinion states the case.
McCall, Crawford McCall, for appellant. — On question of traveler and requested charge: Smith v. State, 42 Tex. 464; Bain v. State, 38 Tex.Crim. Rep., 44 S.W. Rep., 518; Thomas v. State, 37 Tex.Crim. Rep..
On question of charge of court and traveler: Head v. State, 76 Tex. Crim. 496, 175 S.W. Rep., 1062; Williams v. State, 74 Tex. Crim. 56, 169 S.W. Rep., 1154; Hunt v. State, 52 Tex. Crim. 477; Irvin v. State, 51 Tex.Crim. Rep.; Quinn v. State, 51 id., 155; Granger v. State, 50 id., 488.
C.C. McDonald, Assistant Attorney General, for the State.
Appellant was convicted of unlawfully carrying a pistol, and prosecutes this appeal.
The statement of facts was signed, approved and filed in term time, but is not copied in the transcript. Clerks at times do not pay enough attention to the law as regards misdemeanors. The law still requires the statement of facts to be copied in the transcript in misdemeanor cases, but the original must be sent to the court in felony cases. The motion of the Assistant Attorney General to strike out the statement of facts must be sustained, but appellant's counsel, if he so desires, can have the transcript corrected by proper application and have the statement of facts brought before us in such shape as we can consider it and be enabled to pass on all the questions raised.
There is an error in the record which is fatal to the conviction, however. The court gave a special charge at the request of the State, that even though they found appellant was a traveler as defined in the charges given, if appellant disturbed the peace or engaged in any other unlawful purpose, he would be guilty of unlawfully carrying a pistol. This is not correct. Appellant may have been guilty of disturbing the peace, but he was not on trial for that offense, and even though he was, if he was lawfully carrying a pistol, the fact he disturbed the peace would not justify a conviction for unlawfully carrying arms.
The judgment is reversed and cause remanded.
Reversed and remanded.