
    ANDERSON v. STATE.
    (No. 10059.)
    (Court of Criminal Appeals of Texas.
    March 31, 1926.
    State’s Rehearing Granted May 12, 1926.)
    Criminal law &wkey;>1099(6) — Statement of facts ■filed! more than 100 days after adjournment of court cannot be considered on appeal (Vernon’s Ann. Code Cr. Proc. 1916, art. 845).
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 845, limiting time within which to file statement of facts to 90 days after adjournment of court, statement filed more than 100 days after adjournment cannot be considered on appeal.
    Commissioners’ Decision.
    Appeal from Dallas County Court, at Daw; Wm. M. Cramer, Judge.
    G. E. Anderson was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    G. H. Crane, of Dallas, for appellant.
    J. Gossett Greer, Asst. Crim. Dist. Atty., of Dallas, Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is unlawfully carrying a pistol, and the punishment is a fine of 8100. The stated testimony shows that appellant was seen with a pistol about four miles from Segoville, Dallas county, Tex., on the Dallas public road. The appellant did not deny having the pistol on the occasion in question, but offered proof to the effect that he had loaned the pistol to a boy by the name of Horne who lived down below Segoville, and at the time he was seen with the pistol he had ibeen down to this party’s house and had got the pistol and was taking the same back home with him. The uncontradicted testimony of the appellant and his father was to the effect that he had loaned this pistol to this friend, and that he had gone for the pistol on the occasion of his arrest, and that he had procured it from his friend, who had borrowed it, and was returning home with it, and that he stopped to fix one of his lights on his car which was out of order and was apprehended with pistol at this time.

Appellant requested the court to charge the jury to the effect that he had a lawful right to go to the home of this friend who had borrowed this pistol and to take the pistol home with him. The court refused to so instruct the jury, and nowhere in his main charge did he instruct the jury that, under the theory of the case thus presented by the evidence, carrying the pistol would he no violation of the law. We think this charge should have been given, and the refusal of the court to give it was error. It presented in apt latiguage the affirmative defense offered by the appellant, and this defense was nowhere submitted by tbe court in bis main charge.

For tbe refusal to give this special charge, tbe judgment is reversed, and tbe cause remanded.

PER CURIAM. Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe'judges of tbe Court of Criminal Appeals, and approved by tbe court. ■

MORROW, P. J., absent.

On Motion for Rehearing.

MORROW, P. J.

State’s counsel directs attention to a fact shown by tbe record that the court adjourned on tbe 3d day of October and that tbe statement of facts was not filed until tbe 13th of January, more than 100 days after tbe adjournment of court. At tbe time of tbe trial, 90 days after adjournment was tbe limit of tbe time within which to •file a statement- of facts*. See article 845, Vernon’s Ann. Code Cr. Proc. 1916; Demarco v. State, 75 Tex. Cr. R. 529, 178 S. W. 1024; and other cases collated in 2 Vernon’s Ann. Code Cr. Proc. 1916, p. 831; also Sweeney v. State, 84 Tex. Cr. R. 58, 205 S. W. 335; Carpenter v. State, 83 Tex. Cr. R. 87, 201 S. W. 996.

There is nothing in tbe bills of exception which would enable us to appraise their merits in tbe absence of a statement of facts. However, we find that tbe court gave a special instruction which covered tbe omission in tbe charge to which we have adverted in tbe original opinion.

Tbe motion is granted, tbe reversal set aside, and the judgment of tbe trial court is affirmed. 
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