Full opinion text
HAWKINS, J. Conviction is for carrying a pistol in a social gathering. Punishment was assessed at a fine of $100. The charging part of the information is that appellant did “unlawfully carry on and about his person a pistol in a place where persons were1 then and there assembled, to wit, a social gathering at the home of one Ella Vick.” The offense charged is the one denounced in article 485, P. 0. 1925. It is appellant’s contention that the information is insufficient to charge the crime defined in said article 485, but does charge the unlawful carrying of a pistol generally under article 483, but that the evidence showing the carrying to have been at the home of appellant’s mother where he also lived, it would not justify a conviction under article 483. Among other things, article 485 provides that if any person shall go into any social gathering where persons are assembled, and shall i have or carry aboijt his person any pistol, he shall be fined not less than $100 nor more than $500 or be confined in jail not less than 30 days nor more than 12 months, or both. To constitute the crime there must be people assembled at a social gathering and accused must have carried the pistol about his person at such place, and time. We are not able to discover any vice in the information. It charges all the elements necessary to constitute the offense. In the Lomax Case, 38 Tex. Cr. R. 318, 43 S. W. 92, upon which appellant relies, there was an omission to charge that “people wnre assembled.” Pickett v. State, 10 Tex. App. 290, is not authority for the proposition that the allegations were not sufficient to charge an offense under what is now article 485, P. O. In the latter case the trial court quashed the information in so far as it undertook to aver the carrying of a pistol in a “public assembly.’-’ This court was not called upon to determine whether that ruling was correct, but only held it was not error to proceed under what is now article 483 of the Penal Code. The owner or occupant of a house where people are assembled in a social gathering may be guilty of there carrying a pistol under the provisions of Article 485, P. C.; hence under the facts proven the court properly refused appellant’s special charge which directed an acquittal if he was in his own home at the time he carried the pistol. Alexander v. State, 27 Tex. App. 533, 11 S. W. 628; Brooks v. State, 15 Tex. App. 88. (Other authorities are collated in notes under article 485, Vernon’s P. C. 1925, vol. 1, p. 282.) Appellant and his mother claimed they had thrown two rooms of the house open to guests, but had reserved a bedroom and the kitchen for their own privacy, and that the officer took the pistol off appellant in the kitchen. Upon this evidence appellant asked the court to charge the jury that before conviction could be had they must find beyond a reasonable doubt that the “room where the officer took the pistol from the defendant was thrown open to the public and was used as a place for a social gathering.” The charge was properly refused. If appellant and his mother could devote only a part of the house to public or social purposes, reserving the balance in privacy — which we find it unnecessary to decide — still the requested charge was not applicable under the facts. The officer testified that when he went to the house appellant was standing in the door, and went through the room where they were dancing into the kitchen, where he was followed by the officer, who there took the pistol from him. This evidence showing that appellant had been in the part of the house where the guests were assembled, it would have been improper to direct an acquittal because the pistol was taken from him in some other part of the house. The judgment is affirmed. <gs»For other cases s^e same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
On Motion for Rehearing. LATTIMORE, J. [5] Appellant renews his contention that the information was not sufficient to charge him with the offense defined and described in article 485 of our Penal Code, the specific point of his complaint being that said article penalizes any person who goes into any social gathering, place where people are assembled, etc., and that it is not stated in the information that he went into, etc. We do not think the statute contemplates any special emphasis on the words italicized. The accused was sufficiently charged by an allegation that he had on his person a pistol at and in a place where there was a social gathering and people were assembled, etc. Nor do we think it necessary that the information should have charged conjunctively the having and carrying of such pistol. It was sufficient to charge him with having same. It would have been sufficient to charge him with carrying same at said time and place. Where, as in this statute, the offense may be committed in two ways, namely, by having or carrying, etc., the charge is sufficiently laid in the indictment or information when the accused is charged with doing either of the things specified. The state might have properly charged him with having and carrying, but contented itself with naming only one of the statutory acts necessary to make him guilty. We have again reviewed the special charges submitted, in view of appellant’s insistence that the court did not submit his affirmative defense and his claim that such defense was embraced in one of said charges. In misdemeanor cases we hold that it is not enough to except to the charge, but that a special charge embodying the principle of law which the accused sought to have given to the jury should have been requested. It is true that appellant contended in this ease that he did not carry the pistol into the rooms of his mother’s house in which the guests at the social gathering were assembled, but we find no special charge in the record seeking to have the jury told that if he did not so do he would not be guilty. The officer testified that he saw appellant in the room where the guests were assembled at said gathering and that he did not lose sight of appellant until the latter had gone into the kitchen, where he was arrested and searched and the pistol found on him. Manifestly, a special charge asking that the jury be told that they must find and believe beyond a reasonable doubt that the room where the officer took the pistol from the defendant was open to the public and used as a place for a social gathering was an incorrect instruction as ap? plied to the facts of this ease, and presented a wholly different principle of law from that which is contended now to be the .affirmative defensive theory, namely, that appellant had not carried the pistol into the rooms where the social gathering- was in progress. We are unable to find any error in the former opinion, and the motion for rehearing will be overruled.