
    DANIELS v. STATE.
    (No. 7578.)
    (Court of Criminal Appeals of Texas.
    March 28, 1923.
    Rehearing Denied April 18, 1923.)
    1. Weapons <&wkey; 17(4)—Conviction for unlawfully carrying pistol sustained.
    Evidence held sufficient to sustain a conviction for carrying a pistol.
    2. Criminal law <&wkey;l 170/2(6)—-Questioning defendant as to whether he had consulted a lawyer and admitted guilt held not prejudicial error in prosecution for carrying a pistol.
    In a prosecution for unlawfully carrying a pistol, that the question was ashed of defendant while on the witness stand if it was not true that he had consulted a lawyer about his case, and told the lawyer that he had a pistol in his possession on the night he was arrested, defendant stating that he did not tell the lawyer any such fact, held not prejudicial error in view of instructions to disregard.
    3. Criminal law &wkey;l 170'/2(6)—Question asked of witness for defendant held not prejudicial error in view of instructions to disregard.
    In a prosecution of a colored preacher for unlawfully carrying a pistol, it was not prejudicial error for the county attorney to ask another colored preacher, testifying in behalf of defendant, whether he did not also have a big gun on the night defendant was arrested, in view of instructions to disregard.
    Appeal from Smith County Court; D. R. Pendleton, Judge.
    A. H. Daniels was convicted of carrying a pistol, and he appeals.
    Affirmed.
    A. H. Daniels, in pro. per.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted

in the county court of Smith county of unlawfully carrying on and about his person a pistol, and his punishment fixed at a fine of $175.

Appellant was a colored preacher. One of the female members of his flock was taking her departure to attend a convention. Appellant and a number of other members of his church went to the depot to bid her farewell. The husband of the departing delegate appeared on the scene carrying a stick; he beckoned to appellant with said stick to come out of the depot. Appellant came out. The irate husband said to appellant that he had ■warned him not to see his wife any more; that he had told him to stay away from his wife; the husband swore that appellant went back in the depot and came out shortly and pulled an automatic pistol on him; and that he left speedily to get the officers. Appellant’s witnesses denied that he had any pistol on the occasion in question. Another state witness, an officer, testified that upon the report being made to him by the husband of Mrs. Jones, the departing delegate, that appellant had drawn an automatic pistol on the occasion in question, witness went to appellant’s home and found him on the front porch; that he demanded appellant’s pistol and the latter’s wife brought it out; that witness felt of the pistol and it was warm, and there was moisture on the outside of the cylinder chambers of said pistol. This witness testified that from his experience in carrying pistols moisture such as this would form on them when carried near the body; that he had been a peace officer for 20 years. The jury having heard all the evidence and haying resolved its conflicts in favor of the state and against appellant, we are unable to say that there was no testimony supporting their conclusion of guilt.

By a bill of exceptions appellant complains of a question, asked him while on the witness stand, if it was not true that he had consulted a lawyer about his case and told sajd lawyer that he had a pistol in his possession on the night he was arrested. This bill is approved with qualifications which render the matter entirely harmless. In said qualification the trial court certifies that the county attorney asked appellant if he had talked with said lawyer about his case, to which appellant replied that he did. It is also made to appear that the county attorney asked appellant if in the conversation he had with said attorney he told him he had on a gun on the night in question, and that appellant said that he did not tell the lawyer any such fact. It appears that at this juncture appellant’s attorney objected, stating that such evidence would be inadmissible. The court sustained the objection and instructed the jury that the asking of the question by the county attorney was misconduct, and that they should not pay attention thereto. In said qualification it also appears that when the appellant’s attorney objected to the answer to this question, he stated that the evidence would be inadmissible and therefore could not be proven; that the county attorney retorted that it would be admissible to prove it. The court further certifies that in his instructions to the jury he told them they would disregard both the questions asked and the comment made. The court states that he did mot ask them to disregard the statement of the defendant in which he said that he did not tell said attorney that he had any pistol on the night in question. It is further- certified in said qualification that no reference was made to this matter during the remainder of the case and same was in no way alluded to in the argument. We are unable to see any error in the matter as it here appears.

It is also made to appear by bill of- exceptions that another colored preacher, who was testifying in behalf of appellant, was on the stand and the county attorney asked him if he did not also have on a big gun the night appellant was arrested. Appellant objected to this question, and the court instructed the jury not to consider same. The court in qualifying this bill says that the evidence showed that this witness was on his way to St. Louis and was a traveler, and that his carrying a pistol would not have been unlawful, but that he sustained the objection made by appellant and instructed the jury to disregard the question asked. The witness did not answer the question, and there was. no comment on the matter further during the trial.

This disposes of the various questions raised on the trial, a,nd, no error appearing in the record, an affirmance will be ordered. 
      <©E5>For other cases see same topic and KEY-NUMBER m ajl Key-Numbered Digests and Indexes
     