Opinion
No. 4649.
Decided January 30, 1918.
Carrying Pistol — Insufficiency of the Evidence.
Where, upon trial of unlawfully carrying a pistol, the evidence showed that another party had borrowed the pistol and was carrying it home, and while on the way handed it momentarily to the defendant to hold until he returned from a short deflection of their path, the conviction could not be sustained.
Appeal from the County Court of Upshur. Tried below before the Hon. W.H. McClelland.
Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of one hundred dollars.
The opinion states the case.
Briggs Florence, for appellant.
E.B. Hendricks, Assistant Attorney General, for the State.
Several bills of exception were reserved to the ruling of the court during the trial. Under the view we take of the evidence, it is deemed unnecessary to discuss these various questions.
The evidence discloses that appellant and another party named Hardiman were going along the street, and as they crossed the railroad track Hardiman handed to appellant a pistol to hold for him while he went into a nearby social gathering to see and talk with his wife. When Hardiman started in the direction of the house, appellant started to a fence a few feet away. A couple of officers came, and Hardiman seeing them approaching defendant returned without going to the house. He had only gotten a short distance from appellant. He and the officers walked up to where appellant was about the same time, and Hardiman took the pistol from appellant. The officers did not see the pistol handed by Hardiman to appellant for they were forty or fifty feet away and it was at night. The evidence further shows and without contradiction, that Hardiman had borrowed the pistol from another party and was carrying it home. The party from whom he borrowed the pistol and Hardiman testified to this state of case. We are of opinion that this does not show an unlawful carrying of the pistol. This was uncontradicted. The authorities are numerous, but it is deemed unnecessary to collate them.
The judgment will be reversed and the cause remanded.
Reversed and remanded.