
    BROWN v. STATE.
    (No. 3171.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.
    Rehearing Denied June 26, 1914.)
    Criminal Law (§ 200*) — Former Jeopardy— ' Different Offenses.
    As one could not under an indictment for murder be tried for unlawfully carrying a- pistol, an acquittal under an indictment for murder will not avail to him, as former jeopardy, when he is subsequently indicted for unlawfully carrying the pistol, with which, and when, he did the killing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. § 200.*]
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    John Brown was convicted for unlawfully carrying a pistol, and appeals.
    Affirmed.
    Will S. Payne, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted, tried, and convicted for unlawfully carrying a pistol. His punishment was fixed at the lowest prescribed by law.

The uncontradieted evidence showed that he carried a pistol at the time alleged. His sole defense was former jeopardy — acquittal —in that he was duly indicted in the district court of said county for murder and was acquitted therefor. His contention is that, because he carried the pistol at the time and with which he killed deceased and was acquitted therefor, he could not be tried for unlawfully carrying a. pistol. Of course, no one would contend that under an indictment for murder a person could be tried for unlawfully carrying a pistol or that they were the same offense. That he unlawfully carried the pistol at the time and with which he killed a person, was tried, and acquitted therefor, could not and would not be former jeopardy for unlawfully carrying a pistol. Thomas v. State, 40 Tex. 36; Ballard v. State, 167 S. W. 340. It is unnecessary to cite other cases or discuss the question.

The judgment is affirmed.  