
    No. 5757.
    Luke Short v. The State.
    1. Carrying Pistol—Evidence.—A conviction for unlawfully carrying a pistol can not be sustained upon proof that when the pistol was found on the person of the accused, he was at his usual place of business.
    2. Same.—Nor can such a conviction be sustained upon proof which shows that, when the pistol was carried, the accused had reasonable ground for fearing an unlawful attack upon his person, and that the danger was imminent and of such a character as not to admit of the arrest of the party about to make such attack. The actual presence of the threatening party at the time that the pistol was carried by accused, was not essential to bring the accused within the exception to the statute.
    3. Same—Fact Case.—See the statement of the case for evidence held insufficient to support a conviction for unlawfully carrying a pistol.
    Appeal from the County Court of Tarrant. Tried below before the Hon. Sam Furman, County Judge.
    The conviction was for carrying a pistol, and the penalty assessed was a fine of twenty-five dollars and confinement in the county jail for twenty days.
    S. P. Maddox testified, for the State, that he was one of the policemen of the city of Fort Worth. On the night of December 12, 1887, he arrested the defendant in the White Elephant saloon, in said city, for carrying a pistol on his person. On that occasion the defendant drew the pistol from his hip pocket and discharged it into the floor of the saloon, and witness had to overpower him in making the arrest. When witness took the pistol from defendant the defendant said that he had a commission and was authorized to carry the pistol. There was then a large crowd in the saloon, and defendant was crazy drunk.
    
      The State closed.
    John D. Templeton testified, for the defense, that he owned a half interest in the building in which the White Elephant saloon was kept. During the fall of 1887 the witness received an anonymous communication through the mails, which he had lost. The substance of that communication was that if the game of keno was permitted to be played in the said saloon, the building would be destroyed by dynamite, giant powder or some other powerful explosive. The letter referred to the defendant as a desperado and murderer. Witness attached no importance to that letter.'
    Jake Johnson, testifying for the defense, identified certain letters as those he knew the defendant to have received through the United States mail, and one addressed to himself as one he received through the said mails. W. H. Nanny, joint owner with Templeton of the White Elephant saloon building, identified a letter in evidence as one received by him through the United States mail. Witness, Nanny and defendant employed detective Thomas to discover the authors of the said anonymous letters, but Thomas reported his inability to do so.
    J. B. Littlejohn testified, for the defense, that during the fail of 1887 he received an anonymous letter through the mails, which he had since lost or destroyed. That letter, without mentioning names, spoke of the frequenters of the White Elephant saloon as desperados and murderers. It stated that if the game of keno was longer permitted to be played at said saloon, the building would be blown up with dynamite or giant powder, and warned the witness to cancel the policies of insurance his companies were carrying on the building and contents. Witness paid no attention to the said letter, further than to read it.
    W. H. Ward was the next witness for the defense. He testified that he was one of the proprietors of the White Elephant saloon in Fort Worth on the twelfth day of December, 1887. At that time, and for months prior thereto, the headquarters of the defendant were at the saloon. He had a desk in the office of said saloon, where he conducted his correspondence, and a drawer in the safe of the said saloon, of which safe he knew the combination, and in whieh he kept his papers and other valuables. Defendant spent about three-fourths of his time at that saloon. Witness identified certain letters exhibited, as letters which, in his presence, were delivered to defendant by the mail carriers of Fort Worth. Cross examined, this witness said that, in December, 1887, the defendant owned an interest in the White Elephant saloon, for- which he had paid the witness the sum of one thousand dollars. The United States and the State, county and city taxes were paid by witness, and the several licenses were taken out by witness in his name. The prosecutions for the violation of the Sunday law were brought against the witness and the witness pleaded to them in his own name. The firm of Ward Bros. & Short was dissolved about November, 1886. After that the witness was sole proprietor of the White Elephant saloon, until, perhaps, two months before the arrest of the defendant in this case, when he sold defendant one thousand dollar interest mentioned. No papers passed in that transaction, and nobody but witness and defendant knew anything about the defendant having this interest until this prosecution was instituted.
    The first of the letters mentioned by the witness, which was placed in evidence, reads as follows:
    Fort Worth, Texas, Sept. 12, 1887.
    
      Luke Short:
    
    We have just written a letter of advice to Jake Johnson, and now very cordially invite you, without delay, to leave the city, and without further notice; and if you do not you may expect to abide by the consequences; which, when administered, will be of a rough nature, be assured. We are approximating too nearly to the completion of disciplined civilization to have in our midst such men as you are, or of like caliber. We are perfectly conversant with your history, and as such we do not wish you here longer. Texas bullies, murderers and blackleg gamblers must all alike hunt a clime more congenial to their nature and raising. You are recognized in our midst only as a high handed murderer and the associate of robbers and murderers; and we feel it our duty, as a respectable community, to inform you that you are not wanted here by any class, and that it is our desire that you leave at your earliest convenience and without further notice, and unless you act upon this injunction the next will be served in such a manner as will prove hostile to your better feelings. We think you have a great deal of audacity to try to arrogate to yourself the privilege of remaining in a respectable community. Now, without further notice, in causing us to give publicity to the fact that you must go at once, for I tell you we do not intend you to remain in our midst. You know you are not a.worthy subject for the association of gentlemen, and feel you have a brazen audacity to impose' yourself upon gentlemen of culture, and men who have been raised by respectable parents, and your impotence is only surpassed by your deeds and your ignorance. ¡Now, we intend to get rid of you, and it does not matter how, but will devise such means if you attempt to remain that will rid the community of your presence for good. The time has arrived when the country has no need of such men, and they must and shall go.
    The envelope, addressed “Luke Short, Fort Worth, Texas,” postmarked “Fort Worth, September 13, 8:30 p. m., 1887,” with a canceled two cent stamp on the same, was introduced in evidence with the letter.
    The second letter reads as follows:
    
      Luke Short:
    
    We still find you in our city, and again tell you to leave. We can not and will not tolerate you. You are just as certain to be killed as you live. ¡Now, it matters not—it may be some time, or it may be a few days—yet you have got to go, if we have to poison you. You black hearted murderer, instead of going around hunting men in quiet with their hands in their pockets, as you did Oourtright, you can find plenty in this city who are ready and waiting, as you know; but, you cowardly cur, you dare not insult them. You keep clear of them. This shows the cur that is in you, you low down dog. ¡Now, fill yourself with whisky and go down to the whoar house and beat a poor, degraded, fallen woman over the head with your pistol. This alone is proof of what you are. ¡No well raised man could be driven to such resentment. The grand jury has your life’s history, and you would have a hot time, even if you could live and remain here. They are aware of all your threats on men’s lives in this town. You know you have no claim, only so far as your money goes. Outside of a few gamblers and whoars can associate with your so called wife with respectable people. We are waiting. The sooner you murder another man, the better for us. We intend you shall go, as goes all men of your kind. Don’t you think this will be all. You will get letters regular. We intend to make it hot for all of your kind, and dón’t you forget it. ¡Büeno will close up.
    
      The envelope, with address, post mark, etc., was introduced in evidence with the above letter.
    The next letter reads as follows:
    
      Mr. W. H. Nannie:
    
    Dear Sir—As one of the owners of the house known as the White Elephant, we drop you a line of warning, that in case the game known as keno is again opened, what you might expect. There is no use of entering into details as to what it has done in our city, such as distressing mothers, wives and suffering children, because we know you are thoroughly acquainted with these facts. The owner of the property should not rent it for such purposes as “keno.” We shall now say to you in unmistakable language, the game known as keno shall not again be run or opened in this town. Its fate is sealed. We intend suberdition in this respect, if nothing else. Wen do not intend owners of property to evade the law, ignore the wants of the poor and suffering, and by acting in concert with noted murderers, desperadoes and the scum of creation, who have no ability to follow a respectable business, to longer plie their avocation here without paying a heavy penality. How, let him where the shoe fits wear it. There is no use in multiplying words with you. We are a united body and do not intend keno to run. If it is opened we will burn the infernal building before it shall run. We will resort to anything first, for it shall not run, and men who rent their houses for such a game as keno, where men have no equal chance, should be made to suffer losses sufficient to indemnify the public against such high handed robbery. So now you have one notice, and you had better heed it and abide by it accordingly.
    The envelope, with post mark, etc., was introduced with this letter.
    The next letter, together with its envelope, was introduced. It reads as follows:
    Port Worth, Texas, Sept. 12,1887.
    
      Mr. Johnson:
    
    Dear Sir—Your position by association with certain noted characters of our city forces us to write to you. Hot that their exists with us any degree of malice toward you, but that there are certain characters in our midst that civilization does not need, and will not tolerate longer. We now are a city of enlightened people; stand as peers with other cities, and must protect our interest, that we may reflect good credit abroad and compete with growing interests of others more advanced.
    You know it to be a truth that this man Short is one of the worst noted characters in our country; that he is guilty of high handed murder, and that when he murdered Jim Oourtright the prevailing opinion was that it was done in a street brawl or fight, but that since that time it has been conclusively shown that it was premeditated, and that the fatal shot had pierced his heart before Oourtright thought of such a thing as his being armed or contemplating such a cowardly act, and that Court-right was wilfully and wantingly murdered, without a shadow of a show for his life; and that since that time he has been drunk and made threats, saying what he would do, and that the public, who does not coincide or concur in his views, stands in awe, fearing less at any time they might be shot down without a moment’s notice. For awhile here we had comparative piece, for shortly after the occurrence- he left the country and remained for some time, and then it was we enjoyed the quietude of civilization and the fruits of an enlightened age. The day has passed when a community will sit quietly and submit to outlaws, desperadoes, murderers and low down roughs, and such as he will be warned, and it will be well for him if he takes the advice, for we are determined he and like characters shall go. You know that it is a fact that he has had some of the worst characters brought here, and were here at his call, and were in full companionship with him and like characters, and that, instead of his making the house a resort for gentlemen, it has been a resort for desperadoes and murderers, and a refuge for outlaws and roughs from every quarter. Now, such you know to be the facts, and as such we will not stand it any longer, it matters not who it involves or who it exposes. We are determined it shall not be tolerated any longer, and if men persist in associating and upholding such characters, they may, too, expect to receive the same approbation at the hands of the public, for such characters have made this house to compare favorably in crime to its ponderous name.
    Again you know it to be a fact that not one out of all who have been interested in the Elephant house have been men who were not and are not in any way identified with the interests of the town. With one exception—yourself—they are men who have came here to sap the life-blood, vampire like, never once reflecting a qredit or aiding in any way to its advancement. You further know it to be a fact that this man Short is every day on the street with a pistol on his person, in utter defiance of law and common decency, and we repeat it, the public will not stand it any longer. You are too well acquainted with his merits to deny it, and you know he is a man void of honor, and as evidence he played against a house here, taking chances and trying to win their money, and none to lose, and that he lossed several thousand dollars, and then repudiated it without any pretext, for being a sporting man himself was able to protect himself, therefore it was made a debt of honor, and he repudiated it, has forfeited the recognition of every honorable sporting man, for with them are honorable men, high minded, liberal to a fault. Who would scorn to resort to a little thing or any act calculated to invalidate their honor. Knowing all this we feel your duty to assist in getting rid of such low down characters and not recognize them as fit association of a fellow citizen.”
    Detective Thomas and deputy sheriff Tucker testified for the defense that, employed by defendant and Nanny, they attempted to trace the author of the anonymous letters in evidence, but failed.
    
      Byron 6?, Johnson and JV. A. Stedman, for appellant.
    
      W. L. Davidson, Assistant Attorney General, for the State.
   White, Presiding Judge.

This appeal is from a conviction for unlawfully carrying a pistol.

It is shown by the evidence that defendant had the pistol in the White Elephant saloon on December 12. Defendant proved by Ms witness, Ward, and there was no evidence to contradict the testimony, that on December 12, the defendant owned an interest in the White Elephant saloon, having paid the witness (who was the principal proprietor), one thousand dollars for said interest; that he had a desk in the office of said saloon, where he did his correspondence, and a drawer in the safe in the office in which he kept his papers and other valuables, and that he spent three-fourths of his time at said saloon. Defendant was a silent partner in the concern.

It was also abundantly proved that defendant had, prior to December 13, received several anonymous letters threatening his life. These letters were fully proved up by witnesses, and were read in evidence; and it was shown that defendant had endeavored to procure, and perhaps, did procure, the aid of a detective and deputy sheriff to assist him in ferreting out the authors of the letters, and without avail.

Opinion delivered May 2, 1888.

From the facts as developed in this record, we are of opinion that, at the time the defendant was found with the pistol on his person, he was at his place of business; and furthermore, that at said time, he had reasonable ground for fearing an unlawful attack upon his person, and that the danger was imminent and threatening, and of a character such as did not admit of the arrest, upon legal process,' of the party about to make such attack. ■

In Young’s case, 42 Texas, 462, it is said: “The statute does not prescribe that the party from whom an attack is feared must be actually present before preparation is made for self defense. It is easy to imagine circumstances under which the danger might be most imminent, though the person from whom it was threatened was not immediately present.”

We are of opinion that the verdict and judgment are against the evidence (which will be reported), and the judgment is therefore reversed and the cause remanded.

Reversed and remanded.  