
    (86 Tex. Cr. R. 356)
    WILSON v. STATE.
    (No. 5597.)
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1919.)
    1. Weapons <&wkey;6 — Evidence insufficient TO SHOW UNDAWFUD CARRYING OF PISTOD.
    One who borrows a pistol and carries it home by the most practicable route does not violate the law prohibiting unlawful carrying of a pistol.
    2. Weapons &wkey;>17(6) — Deniad of instruction AS TO INSUFFICIENCY OF EVIDENCE TO CONVICT IF UNDAWFUDDY CARRYING PISTOD, ERRONEOUS.
    Refusal to instruct as to acquittal if accused, charged with unlawfully carrying a pistol, borrowed pistol and was carrying it home by the most practicable route and came upon his brother engaged in trouble, and after the difficulty turned back to his brother’s store to ascertain whether his brother was injured, and there left the pistol for a day or two, was error.
    Appeal from Angelina County Court; E. B. Robb, Judge.
    Weed Wilson was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed and remanded.
    Mantooth & Collins, of Lufkin, and J. J. Collins, of Huntington, for appellant
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of unlawfully carrying a pistol, his punishment being assessed at a fine of $100.

Under the state’s evidence, appellant was seen with the pistol on a street in Huntington. He fired two shots at a party who was fighting with his brother. Appellant admitted having the pistol and firing the shots at the time and place indicated. His contention was that he had borrowed the pistol to carry to his home shortly before this occurrence, and had left it at the store of his brother in Huntington, and that at the time he had the pistol he was en route home with it, and that he came upon the scene where his brother and his antagonist were engaged in trouble, and that he fired the shots indicated; that he did not know whether the man he shot at had seriously hurt his brother or not, so he turned and went back' to bis brother’s store to ascertain that iact, and left the pistol at the store for a day or two, when he secured and took it home.

The court charged the jury, in substance, that if appellant had borrowed the pistol, and was carrying it home by the most practicable route from his brother’s store, the jury would acquit. Appellant’s contention was that the court should have instructed the jury that if in carrying the pistol home from the store he came upon his brother in the difficulty as indicated, and turned back to the store after the difficulty to ascertain whether his brother was injured or not by the man who was attacking him, and then left the pistol at the store, still he would not be a violator of the law. Proper exception was reserved to the charge for failing so to instruct the jury, and special requested instructions asked, which were also refused and exception reserved. We are of opinion the court should have instructed the jury as requested, and committed error in not doing so. If appellant had started home with the pistol and was en route home the most practicable way or line of travel, he would not be guilty, and the court so instructed the jury; but if his attention was arrested by the trouble, and after cessation of the trouble he turned back to his brother’s store to ascertain, as he stated he did, the condition of his brother, and then left the pistol, we are of opinion that the jury ought not to have convicted him. This was an important question in the case, because the jury may have thought and reached the conclusion that, having gone the distance he did to where his brother and opponent were having trouble with the pistol and fired it, and then returned to the store, he went to the store and secured the pistol for the purpose of going to and engaging in the difficulty between his brother and his opponent, and that if appellant did that he would have violated the pistol law. But if he started home and came upon the trouble between his brother and his opponent unexpectedly and fired the pistol and returned to the store, he should not be convicted.

We are of opinion the court erred in not so charging the jury; and for this reason the judgment is reversed, and the cause remanded. 
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