Kellum v. State (147 S.W. 870, 1912)

DAVIDSON, P. J.

Appellant was convicted of carrying a pistol in violation of tbe statute.

Appellant at tbe time of tbe alleged offense was temporarily residing in Whitney, Hill county, under treatment of a physician, and had been so residing for two or three weeks. He resided or boarded and bad bis room in tbe city hospital in Whitney, spending most of bis time during tbe day at tbe office of tbe physician who was treating him, and often spent bis nights with a young man who bad a room in one of tbe physician’s offices. On the occasion that was predicated for this prosecution, appellant spent tbe night with a friend in one of these offices; tbe name of tbe friend being Harris. While in tbe room Mr. Harris said that tbe electric lights would go off directly, and went downstairs to get a lamp, requesting appellant to go with him. They went to a drug store, which was in an adjoining building, returning to tbe room in a few minutes. In going upstairs on their return, Harris banded appellant a box, and, upon being asked what was in it, Harris stated it contained an automatic pistol; that be did not want it about bis office, and made appellant a present of it. Tbe pistol was in tbe original package. The box was not opened that night. It was kept in tbe room by appellant where be spent tbe night. The next morning be left, going to bis own room at tbe hospital, taking tbe pistol with him, having it in bis pocket. En route be met the proprietor of tbe hospital and stopped momentarily to make some inquiry, and while thus talking the city marshal approached and arrested him. He asked tbe officer why be arrested him. The officer refused to give him tbe information. Appellant made some resistance of being arrested, but was carried by tbe officer and another party to another part of the town and searched. Tbe pistol was found and taken from him. This is about'the substance of tbe testimony.

We are of opinion this does not constitute a violation of tbe statute. Appellant bad tbe right to spend tbe night with his friend, and when tbe friend gave him a pistol be bad the legal right to carry that pistol to his room. He was en route to his room and by tbe nearest practicable route, as tbe testimony shows, at the time he was arrested by the officer.

The judgment is reversed, and the cause is remanded.