
    ROBISON v. STATE.
    (No. 4039.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.)
    1. Criminal Law <©=>1159(3)—Appeal—Con-flict in Evidence—Grounds eor Reversal.
    Where there was positive conflict in evidence, there being testimony to support the information, the court will not reverse a verdict of guilty for insufficient evidence.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 3076; Dec. Dig. <©=>1159(3).]
    2. Criminal Law <©=>1170(1)—Appeal and Error—Harmless Error.
    In a prosecution for violation of the pistol jaw, error in excluding defendant’s testimony offered to explain why he was at a negro dance and that he had been in this negro dive three times, twice as a peace officer, and on the occasion in question, through curiosity, to watch the negroes dance, was harmless.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3145, 3149-3152; Dec. Dig. <©=>1170 (1).]
    '3. Witnesses <©==>48(1)—Competency—Accu-sation op Crime.
    The fact that a witness was under indictment for felony, even though charged with as■sault with intent to murder the same person at the same time as the defendant, did not render him an incompetent witness for the state.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 109, 110, 113; Dec. Dig. <©=> 48(1).]
    4. Criminal Law <©=>881(2)—Trial—Verdict —Sufficiency.
    Where the defendant was charged with carrying a pistol, a verdict finding him guilty and assessing ■ a fine is sufficient and responds to the information.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2093; Dec. Dig. <©=>881(2).]
    Appeal from Fisher County Court; M. A. Hopson, Judge.
    J. W. Robison was convicted of violating the pistol law, and he appeals.
    Affirmed.
    J. D. Barker, of Roby, for appellant.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the pistol law, his punishment being assessed at a fine of $100.

The evidence is in direct and positive conflict. The state shows appellant had the pistol at the time and under the circumstances stated in the facts. The evidence for the appellant contradicts emphatically and strongly the state’s witnesses and testimony. The record being in this shape on the sufficiency of the evidence, this 'court would not be justified in reversing for this reason.

A bill of exceptions was reserved to the action of the court sustaining the state’s exception to testimony offered to explain why appellant was at a negro dance and supper at the time the pistol was said to have been exhibited. The evidence which was excluded was as follows:

“I have been down to this negro dive three times during the fall and winter. I went two times at the instance and request of R. I. Smith, constable of precinct No. 3, Fisher county, Tex., as a peace officer. Christmas time, the last time, the time of the trouble occurred, I went along with several friends, just merely to bo going, through curiosity, to watch the negroes dance.”

This was offered as an explanation of his presence at the negro dance and supper. While this testimony may have been admissible, it' is of no weight or moment. It would make no material difference why appellant was at the place of the negro function if he had a pistol and exhibited it, unless he had the right to carry it under some statutory exception. It is not claimed that his visit on this occasion was as a peace officer. Whether this testimony was erroneously rejected or not, it is not of sufficient importance, even if the court was in error, to require a reversal.

Another bill recites that, while Albert Simpson was testifying for the state, he was asked the following question by state’s counsel:

“Were you the negro who was fighting Louis Lockett, and did you have a pistol, and did you shoot Louis Lockett?”

Appellant objected: First, because Albert Simpson was charged with assault with intent to murder the same man at the same time; second, being charged with the offense of assault with intent to murder, same being a felony, he was not a competent witness for the state. We do not think there is any merit in any one of these grounds. The court having overruled both, the witness further testified as follows:

“Yes; I was fighting Louis Lockett. I did not have a pistol. I did not shoot Louis Lock-ett. I do not know who shot him. Yes; I am now confined in jail under charge with assault with intent to murder.”

The fact that the witness stands charged with a felony under an indictment does not render him incompetent as a witness for the state, even when he is indicted for the same offense as the party on trial. The statute permits the use of such witnesses under the circumstances stated in the statute.

It is also contended that the verdict is insufficient, unintelligible, unmeaning, and does not respond to the information filed, and is not clear as to its meaning, said verdict being word for word as follows:

“We, the jury, find the defendant guilty, and assess his punishment at one hundred dollars.
“[Signed] J. A. Waddell, Foreman.”

We are of opinion that the verdict is sufficient. It responds to the information and to the court’s charge. Appellant was only charged with carrying a pistol, and the court appropriately charged the punishment. We think the verdict is sufficiently intelligible, and not subject to the criticisms.

The judgment will be affirmed. 
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