
    ULLOA v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1914.)
    1. Criminal Law (§ 1159) — Appeal—Review —Verdict—Conceusiveness.
    Where five witnesses, in a prosecution for unlawfully carrying a pistol, swore that accused had the pistol, while accused and three other witnesses swore that he did not, the question was properly submitted to the jury, and their verdict will not be disturbed, especially in view of the charge on reasonable doubt given at accused’s request.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.]
    2. Criminal Law (§ -811) — Trial—Instructions — References to Penalty.
    That the court in defining the offense charged told the jury what the penalty was, and in submitting the issues also instructed them as to the penalty to be assessed, was not erroneous as making the punishment too prominent.
    [Ed. Note. — For other cases, see Criminal Law,' Cent. Dig. §§ 1787, 1969-1972; Dec. Dig. § 811.]
    Appeal from Hays County Court; J. R. Wilhelm, Judge.
    Juan Ulloa was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. ICey-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of ⅜100.

His first contention is that the evidence does not show beyond a reasonable doubt that appellant had the pistol on the occasion mentioned by the witnesses for the state. Dionicio Evarra, Mary Garcia, Celestina Garcia, Ignacio Evarra, and Miguel 'Cannona all swear that appellant had a pistol, while appellant, Petra Ulloa, Nellie Evarra, and Manuella Ulloa swear he did not have a pistol on that occasion. This was a question of fact which was properly submitted to the jury for their determination, and we will not disturb their verdict, especially so as the court gave the following special charge at the request of appellant: “That a reasonable doubt is that state of case which, after the entire comprehension and consideration of all of the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge; and a reasonable doubt need not necessarily arise out of the evidence; it may be the result of a want of testimony sufficient to satisfy the mind; and unless you find that the defendant is guilty as charged in the information beyond a reasonable doubt, as herein defined, you will return a verdict of not guilty.”

The only other exception to the charge as given is that as the court in defining the offense told the jury what the penalty was for a violation of this law, and in submitting the issues to the jury instructed them also as to the penalty to be assessed in case they found appellant guilty, made the punishment too prominent. This has been so often decided adversely to appellant we do not deem it necessary to discuss it.

There are no exceptions to the admission of testimony, and, this being the only exception to the charge as given, the judgment is affirmed.  