
    SMITH v. STATE.
    (No. 6245.)
    (Court of Criminal Appeals of Texas.
    June 22, 1921.)
    1. Criminal law <®=372(l)— Eviderfce of previous carrying of pistol admissible in prosecution for carrying pistol.
    Where the state showed that defendant carried a pistol on Saturday and Sunday, but elected to rely on the Sunday carrying, and it appeared that on Sunday defendant went into a restaurant, and he placed the pistol on a stool beside him, evidence that on the previous Saturday defendant had made a demonstration with the pistol against one who worked in the restaurant, threatening to kill him, was admissible as tending to show that defendant was carrying a complete pistol on Sunday; it being defendant’s claim that the pistol lacked a cylinder.
    2. Crimina! law 48=770 (I) — Defendant entitled to have his theory of the case presented.
    " The accused in a criminal case is entitled to have his theory presented pertinently, plainly, and affirmatively.
    3. Weapons <®=!7(6) — Defendant held entitled to instruction of effect of carrying defective pistol.
    In a prosecution for unlawfully carrying a pistol, where defendant contended that the weapon lacked a cylinder, he is entitled to have that theory affirmatively presented by charges that there could be no conviction if the weapon did lack a cylinder.
    
      4. Weapons @=3(7(6) — Charge helcf misleading.
    In a prosecution for carrying a pistol which defendant claimed lacked a cylinder, a charge that the carrying of a part of a pistol which is not capable of being used for shooting is not a violation of the law, but it is illegal to carry a pistol whether a new one or an old one, a gooa one or a bad one, or whether all its parts are together at the time, was improper, the latter portion tending to mislead the jury.
    5. Weapons @=317(6) — State must establish the offense relied on.
    Where the state offered evidence of two pistol carryings, but relied on one, the jury should be charged that, unless defendant did on the occasion relied oh carry a pistol, there could be no conviction.
    6. Witnesses @=3345(2) — Witnesses may he asked whether they are not under indictment for selling intoxicants.
    As the selling of intoxicating liquors is a felony, witnesses may be asked, for the purpose of affecting their credibility, whether they were not under indictment for selling intoxicating liquors.
    7. Weapons @=317(5) — Whether defendant was carrying a complete pistol held for the jury.
    In a prosecution for unlawfully carrying a pistol, where the defense was that it lacked a cylinder, the question held, under the evidence, for the jury. ,
    Appeal from Navarro County Court; H. E. Traylor, Judge.
    Earl Smith was convicted of carrying a pistol and he appeals.
    Reversed and remanded.
    Callicutt '& Johnson, of Corsicana, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   UATTIMORE, J.

Appellant was convicted in the county court of Navarro county of unlawfully carrying a pistol, and his punishment fixed at a fine of $150.

The state proved against appellant two pistol carryings, one on Saturday and the other on the Sunday following, electing to rely for conviction upon the Sunday transaction. It appears from the record that on Saturday there was a difficulty between state’s witness Castles and appellant, in which the latter drew a pistol on Castles and abused him and threatened to kill him with said pistol. On Sunday, the next day, appellant went to the restaurant where Castles worked, ordered a meal, and, according to the testimony, took a pistol out of his bosom and laid it on a nearby stool, while he was eating. The state was allowed to go pretty fully into the transaction of Saturday, and we think properly so. The theory of the defense, supported by evidence, was that appellant had an old pistol without a cylinder, and that this was what he had on his person on the Sunday in question. As rebutting this theory, and as strengthening that of the state that he was carrying a whole pistol on Sunday, we think the fact that he had a pistol on Saturday and drew same and threatened to use it would be provable as supporting the state’s witness Castles, who said that appellant had the same pistol on Sunday that he had on Saturday, and also as tending to support the proposition that appellant had a pistol such as was testified to by all the witnesses, and that it was all there. The testimony as to his difficulty with Castles and his threats toward the latter on Saturday would further strengthen the state’s theory that the pistol was carried to the restaurant where Castles worked on Sunday, partly at least because of the presence of Castles at said place.

The accused in a criminal case is entitled to have his theory presented pertinently, plainly, and affirmatively. Appellant’s theory in the instant case was that the pistol in question had no cylinder. He asked special charges, presenting in various ways the direct question that he must be acquitted unless the jury believed beyond a reasonable douht said pistol had a cylinder. This theory should have been affirmatively presented. Cook v. State, 11 Tex. App. 19; Miles v. State, 77 Tex. Cr. R. 597, 179 S. W. 507; White v. State, 66 S. W. 773. The trial court charged the jury, among other things, as follows:

“The carrying of a part of a pistol that is not capable of being used for shooting is not a violation of law, but it is a violation of law to carry a pistol, whether it may be a new one or an old one, a good one or a bad one, or whether all of its parts are togetker at the time.”

This charge was excepted to. We have grave doubts as to whether any part of said charge, wherein it states that it makes no difference whether the pistol in question be an old or a new one, a good or a bad one, should have been given. Part of this language was used in Steele’s Case, 73 Tex. Cr. R. 352, 166 S. W. 511, but it was stated by this court in Miles Case, supra, that the language used in the Steele Case had been misunderstood and misinterpreted. We are of opinion that the last clause of said charge under discussion was not called for by the facts of this case, and was liable to mislead the jury. There was no issue as to appellant’s possession of different parts of the pistol, disconnected and separate from each other. The state’s testimony showed his possession of a whole pistol; that of the defense, his possession of a pistol minus a cylinder. The charge that it was unlawful to carry a pistol whether all of its parts were together or not, without proper facts, might lead the jury to conclude that, though some part of said pistol was not with that exhibited by the accused, such carrying might be unlawful.

The trial court gaye a charge limiting the jury’s finding to. the Sunday transaction. The language of said charge was excepted to. Same stated as follows:

“You cannot find the defendant guilty of unlawfully carrying a pistol on Saturday evening, even though you may believe he is guilty of unlawfully carrying a pistol on Saturday evening.”

. It is Insisted that the statement, “even though you may believe he is guilty of unlawfully carrying a pistol on Saturday evening,” was on the weight of the evidence, and an intimation that the trial court believed the accused guilty of carrying the pistol on Saturday. The matter is not free from doubt. If the state elects upon another trial to prosecute for the Sunday transaction, the jury should be told, as was done in the unquoted part of the last paragraph of the charge, that the state so elected; and, further, that unless they believed beyond a reasonable doubt that appellant did unlawfully, as herein defined, carry said pistol on Sunday, the - day of -, they should find him not guilty.

No error appears in ashing appellaht’s witnesses if they were under indictment for selling intoxicating liquor. Same is a felony, and such proof was admissible for the purpose of affecting the credibility of said witnesses, and should be limited to that purpose upon another trial.

The complaint of the argument of the county attorney will not now be discussed, as same will not likely occur again.

We are not in accord with appellant’s contention that the evidence did not support the finding of the jury. Three state witnesses testified that appellant took the pistol in question from his bosom, in a public restaurant in the city of Corsicana, and placed same on a stool while eating a meal. Two of said witnesses testified that they did not notice whether said pistol had a cylinder or not. The absence of a cylinder would appear such a noticeable fact that the jury may not have felt inclined to give such evidence the weight attributed thereto by appellant.

Eor the errors mentioned, the judgment will be reversed, and the cause remanded. 
      CS=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      @=3For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     