
    GIBBS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 2, 1913.
    On Motion for Rehearing, April 30, 1913.)
    1: Criminal Law (§§ 1092, 1099) — Appeal-Bills of Exception — Statement of Facts —Filing—Time. .
    Bills of exception and a statement of facts not filed until more than 20 days had expired after the adjournment of the term at which accused was convicted would not be considered on appeal.
    ■ [Ifld. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866, 2880, 2919; Dec. Dig. §§ 1092, 1099.]
    On Motion for Rehearing.
    2.Criminal Law (§ 1099) — Appeal—Statement of Facts — Filin g — 'Delay—Fault of Court.
    Where accused’s statement of facts was approved by the attorneys on both sides and handed to the judge for his' approval on the thirteenth day after court adjourned, and the judge promised to approve and file the statement within the time allowed, but did not do so owing to a misapprehension of the length of time within which the statement must be filed, and it appeared that the statement filed out of time was correct, it would be considered on appeal.
    [Ed. Note. — For other cases, see Criminal. Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    3. Weapons (§ 9) — Carrying Weapons — Rented Premises.
    Where accused rented a picnic ground for a day, the premises being temporarily under his control, he was entitled to carry a pistol thereon without violating the law, but not where people were assembled or assembling.
    [Ed. Note. — lor other cases, see Weapons, Cent. Dig. § 8; Dec. Dig. § 9.]
    4. Weapons (§ 9) — Carrying Weapons — Assembly of People.
    A person cannot lawfully carry a pistol into an assembly of people, although the premises on which the assembly is located belong to him.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 8; Dec. Dig. § 9.]
    5. Criminal Law (§ 417) — Evidence—Declarations of Third Person.
    In a prosecution of a negro for unlawfully carrying a pistol, evidence of a state’s witness that he heard accused’s brother say in accused’s absence that he was going to take a gun away from C., a white man, who was deputy sheriff, was incompetent; there being no claim of any conspiracy or acting together between accused and his brother.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. § 417.]
    Appeal from Fort Bend County Court; Geo. C. Baker, Judge.
    Wesley Gibbs was convicted of carrying a pistol, and be appeals.
    Reversed and remanded on rehearing.
    G. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & ftep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of carrying on and about his person a pistol in violation of the law; the jury assessing his punishment at a fine of $100.

There are several' right important ques- , tions in the case, based upon the statement of facts and bills of exception. These cannot be considered, however, inasmuch as they were filed more than 20 days after the county court had adjourned. The caption shows the court adjourned on the 12th of October. The bills of exception and statement of facts were filed on the 5th of November, or more than 20 days after the adjournment of the court. In this condition of the record the statement of facts and bills of exception cannot be considered. In the absence of the evidence ■ and bills of exception- none of the matters presented for revision can be entertained or revised.

As the record is presented, the judgment will be affirmed; and it is accordingly so ordered.

On Motion for. Rehearing.

On a former day of the term the judgment herein was affirmed without reference to the merits of the case; the statement of facts having been filed too late. The motion for rehearing shows the statement of facts was approved by the attorneys upon both sides and handed to the county judge for his 'approval on the 13th day after court adjourned ; that the judge promised to approve and file the facts within the time allowed, but thinking there were 30 days allowed for this purpose he postponed it and did not file same until the 5th of November, the court having adjourned previously on the 12th of October. The county attorney and the attorneys in the ease make this appear to be correct, and that the failure to get the statement of facts filed in time arose from no fault of the attorneys for appellant or the state. It having been approved, although out of time, as a correct statement of facts, we will consider the same as if filed within time. A different rule would apply if the appellant had been deprived of a statement of facts, but in this case the facts were approved as correct, and the only trouble was they were filed too late.

The evidence shows substantially and in brief that appellant had rented what is called the “picnic grounds” from Mr. Sloan. The picnic grounds adjoined the home of appellant or place where he had been living for years; a short strip of land a few feet in width intervening between his home place and the Sloan picnic ground. The place where he had the pistol was about 200 to 300 yards from where the people were assembling for picnic purposes. The picnic grounds for the occasion had been rented to and were controlled by- appellant, as shown by all the testimony without contradiction. The state’s theory was that appellant had the pistol in a difficulty between himself and his brother on one side, and an officer named Collins on the other. The appellant’s testimony is that he had no pistol, carried none, and that when Collins and his brother got into a difficulty that he, being informed of that fact, ran to where they were and took the pistol away from his brother, and by this means he had the pistol on his person. There is considerable amount of testimony pro and con in reference to this matter, but this is a sufficient statement of the case.

If appellant had the premises rented for .the day, they were under his control. Premises, under the circumstances, are under the control of the accused, whether it be permanent or temporary, and under such circumstances he has a right to have a pistol on the premises. It will be noted that he was not charged with carrying a pistol into an assembly; nor do the facts show that he carried it into an assembly, nor where people were assembled. It was 200 or 300 yards away from where the people were assembling. If he took the pistol from his brother, he was not guilty of carrying the pistol. If he carried the pistol on that part of the premises, and not where people had assembled or were assembling, he still would not be responsible for violating the law. It iS the law that a party cannot carry a pistol into an assembly of people, although the premises belong to him. The statute interdicts all others, except peace officers, from carrying a pistol under such circumstances. The authorities on both propositions are well settled. So from neither standpoint do we believe this evidence justifies the conviction of this negro.

There is another question in the case reserved by bill of exceptions to the ruling of the court in the admission of certain testimony. This bill shows that while the state’s witness Matthews was upon the stand he was asked the question by the county attorney, “What did you hear Will Gibbs say about going to take a gun away from Mr. H. W. Collins ?’ Various objections were urged to this, among others, that defendant was not present and knew nothing about what Will Gibbs said; nor was there any conspiracy or acting together between defendant and Will Gibbs shown. The witness answered: “Will Gibbs said, ‘That white son of a bitch [meaning Collins, the deputy sheriff] pulled a gun on me a while ago, and I am going down there to the picnic grounds and take it away from him.’ ” It is also recited as a fact, defendant was not present at the time this statement was made. Defendant also moved to exclude the answer so made, because the statement was made by Will Gibbs in "the absence of defendant, and there was nothing in the evidence to show that there had been any conspiracy between the defendant and his brother, Will Gibbs, to do any unlawful act, and the statements were highly prejudicial to the defendant in the trial before a white jury, the same being a declaration made by defendant’s brother regarding a white man, the defendant and his brother both being negroes; and further because the said statement was irrelevant and immaterial, etc. We think this evidence ought not to have gone to the jury. It is shown appellant was not present, did not hear Will Gibbs make the statement, and therefore he is not chargeable with it.

There is another question raised to the ruling of the court refusing to continue the case. It is unnecessary to discuss this. The witnesses can be obtained upon another trial. We are of opinion the motion for rehearing should be granted, the affirmance set aside, and the judgment reversed and cause, remanded; and it is accordingly so ordered.  