
    PAYNE v. STATE.
    (No. 5095.)
    (Court of Criminal Appeals of Texas.
    June 26, 1918.)
    1. Criminal Law @=>939(2) — New Tbial —■ Diligence.
    Defendant, arrested on the 13th and tried on the 28th of the same month, failed to show diligence entitling him to new trial, where he had no process issued for absent witnesses until three days before trial.
    2. Criminal Law <®=958(4) — New Trial — Affidavits of Absent Witnesses.
    New trial for newly discovered evidence is properly denied, where defendant failed to produce affidavits of absent witnesses on the hearing of the motion more than a month after conviction.
    3. Weapons <S=ol7(4) — Caeeying of Pistol ON OE ABOUT PERSON — EVIDENCE.
    Evidence held' to sustain conviction of defendant for unlawfully carrying a pistol on or about his person.
    4. Weapons <®=U3 — Carrying Pistol — Defense.
    If at time defendant carried his pistol he had reasonable grounds for fearing an unlawful attack upon his person and the danger was so imminent as not to* admit of arrest of person about to make such attack, defendant should be acquitted.
    5. Weapons @=⅛3 — Carrying Pistol — Defense.
    If defendant believed at the time he carried pistol that he or his family were in danger of serious bodily injury, he had a right to carry pistol, provided there was insufficient time to have the party about to make the unlawful attack arrested.
    6. Criminal Law 1091(9) — Trial — Request for Instructions — Time.
    Bills to refusal to give requested charges were insufficient, where they failed to show that charges were presented to or acted upon by court before it charged jury.
    7. Weapons <®==>17(6) — Instructions.
    Where uncontradicted evidence showed that defendant carried pistol not only when he was in dance hall but back and forth to his home and when he took a lady home from the hall, charge that defendant had the right to carry pistol on premises (dance hall) over which he had control was inapplicable and properly refused.
    8. Criminal Law <©=>783½ — Instructions— Excluding Evidence from Consideration.
    Requested charge to disregard defendant’s rudely displaying pistol in dance hall was properly refused although defendant was not charged with rudely displaying pistol; evidence being part of res gestae of his carrying pistol as charged.
    Appeal from Hardin County Court; W. S. Parker, Judge.
    J. S. Payne was convicted of unlawfully carrying a pistol on or about Ms person, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., ior tbe State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully carrying a pistol on or about bis person.

He made a motion for a continuance because of tbe absence of four witnesses, one of whom was bis wife. Tbe prosecution against bim was on an indictment by tbe grand jury. He was arrested on February 13tb. Tbe term of court at wbicb be was tried convened February IStb. Pie was tried on February 28th. lie bad no process issued for bis absent witnesses until February 25th, less than three days before he was to be tried. None of these witnesses were subpoenaed, except perhaps bis wife. He was convicted on February 28th. His motion for new trial was not beard until April 12th following. He in no way produced tbe affidavit of any of bis absent witnesses to the effect that they would testify what be claimed they would. Under tbe circumstances, no diligence was shown to procure bis witnesses; hence the court correctly overruled bis motion for a continuance. Tbe testimony of bis wife, even if she would have sworn what be claimed she would, bad no bearing on whether or not be carried a pistol on bis person on tbe occasion charged.

The uncontradicted proof, and also tbe testimony by appellant himself, showed that on tbe night of January .19, 1918, be armed himself with a pistol, having it concealed in his pocket, and took bis wife to a dance. Tbe distance from bis residence to tbe dance ball is not given, but it must have been some distance. While in tbe dance ball he suddenly drew bis pistol from bis pocket and shot out several of tbe lights of tbe dance ball. After he had been at tbe dance ball for some time with his pistol, be and bis wife took one of tbe young lady attendants of tbe dance some hundred yards to her residence, returned to tbe dance ball, and began dancing again. Tbe evidence docs not make it certain whether be shot out tbe lights before be took the young lady home or afterwards, probably afterwards. Tbe shooting out of tbe lights by bim broke up tbe dance. He then took bis wife home from tbe dance and returned to the dance ball. The testimony makes it certain that be carried bis pistol from the time before be first went to the dance until be finally returned home with bis wife.

He claimed that be was carrying bis pistol on this occasion to protect himself, because about dark that night be bad been told by different parties that some threats against bim bad been overheard, and that be carried bis pistol to protect himself.

Tbe court in a correct charge in accordance with tbe statute instructed the jury that, if at tire time be carried bis pistol be bad' reasonable ground for fearing an unlawful attack upon bis person, and tbe danger was so imminent and threatening as not to admit of the arrest of tbe person about to make such an attack upon legal process, to acquit bim. In another paragraph be instructed tbe jury that, if appellant believed at the time be carried tbe pistol be or bis family .were in danger of serious bodily injury, then be bad tbe right to carry tbe pistol, and in tbe event they so believed to acquit bim, provided be bad not had sufficient time to have tbe party arrested about to make such unlawful attack if they were known to bim. No objection was made to tbe charge at all. Hutchins v. State, 51 Tex Cr. R. 339, 101 S. W. 795; James v. State, 51 Tex. Cr. R. 633, 103 S. W. 934; Mayfield v. State, 75 Tex. Cr. R. 104, 170 S. W. 308; Woodroe v. State, 50 Tex. Cr. R. 213, 96 S. W. 30.

Appellant has three bills to the refusal of the court to give- three separate charges requested by bim. Neither of tbe ■bills show that they were presented to, or acted upon, by tbe court, before be charged the jury or before tbe argument began or be-. fore tbe jury retired. Each of them are wholly insufficient on this account. But if tbe bills bad shown they bad been presented at tbe proper time as required by tbe statute ■and tbe decisions, then neither of them should have been given. One of them undertook to tell the jury that be bad a right to carry a pistol on premises of his own or over which be had control. This was based on his testimony that tbe dance ball belonged to bis employer and that be bad charge and control thereof. This charge was inapplicable because tbe unquestioned proof, as stated, shows that be not only carried tbe pistol while be was in the dance ball and shot out ■the lights, but that be carried it back and forth with bim from bis home to tbe dance ball, and after be bad reached tbe dance ball be took a young lady to her home some hundreds of yards away from tbe dance ball, and ■that be bad tbe pistol with bim all this time.

Another one of bis charges attempted to instruct tbe jury to disregard any of tbe evidence of bis rudely displaying a pistol in the dance ball. While be was not charged with rudely displaying a pistol, tbe evidence of bis shooting out tbe lights was a part of tbe res gestrn of bis carrying his pistol, and hence that charge was inapplicable. Tbe other charge was as to bis right to carry tbe pistol in tbe dance ball to keep peace and protect bis family, because tbe dance ball was under bis control and management as tbe agent of bis employer.

Tbe judgment is affirmed. 
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