
    JENNINGS v. STATE.
    (No. 6614.)
    
      (Court of Criminal Appeals of Texas.
    Jan. 25, 1922.
    Rehearing Denied March 8, 1922.)
    1. Weapons <©=> 17(3)-- Testimony that defendant, charged with carrying a pistol, had loaned the only pistol he owned, held inadmissible.
    In prosecution for unlawfully carrying a pistol, testimony that defendant had loaned the only pistol owned by him about a year and a half prior to the time charged, and that such pistol had never been returned, was inadmissible, where the evidence was direct as to his carrying a pistol, but its identity was not made an issue.
    2.Criminal law <©=>1159(3) — Verdict on conflicting evidence conclusive.
    Verdict on conflicting evidence is binding Court of Criminal Appeals.
    Appeal from CountyCounty Court, Hopkins County;, Homer L. Pharr, Judge.
    Will Jennings was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Connor & Ramey, of Sulphur Springs, for appellant.
    R. G.Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The judgment condemns appellant to pay a fine of $100 for unlawfully (f^ritying a pistol. Without controversy, the fact's show that appellant engaged in a difficulty with the witness Douglass. Whether it’took place upon a strip of land belonging to appellant, outside of Ms field, or upon a public road, was a controverted issue, as was also his use of the pistol in the altercation.

Douglass and two other eyewitnesses testified that the appellant used the pistol as a bludgeon in making the assault. This was denied by the appellant. He testified that he owned but one pistol, and that about a year and a half prior to the difficulty this had been loaned by him to Holley, the constable, and had never been returned. He sought to corroborate this by Holley and another witness.- The refusal of the court to admit their testimony upon this point is made the subject of complaint.

Its admissibility is not apparent. The case rests upon direct, and not circumstantial, evidence. There is no evidence tending to identify the pistol which he possessed at the time of the offense. The testimony that the pistol owned by him was in possession of Holley would have been a circumstance to show that that particular pistol was not in his possession at the time of the fight with Douglass. The crucial question was not whether he owned the pistol, but whether he had one at the time. The rejected evidence bore no such relation to this issue as rendered its exclusion harmful.

The conflict in the evidence touching the possession of the pistol at the time, and concerning the question as to whether it was upon appellant’s land, has been passed upon by the jury. Its solution of the con- > troversy is binding upon this court.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have examined appellant’s motion for rehearing, in which our attention is called to the conflicting evidence of the state’s witnesses with reference to whether, at the time appellant is charged with carrying the pistol, he was on his own premises. We did not overlook this conflict in the testimony in our originál'opinion. We assume this question was called to the attention of the jury and was settled adversely to appellant. \

We do not regard the conflict in the testimony as to the exact place from which appellant is supposed to have secured - the pistol, whether from under the bib of his overalls or the waistband of Ms pants, as being material. The witnesses for the state testify positively to the fact that he did have the pistol, and that was the vital issue. We have again examined the record, in view of the motion for rehearing, and see no reason why we should reach a different conclusion than that announced in our original opinion.

The motion for rehearing is overruled.  