
    MOORE v. STATE.
    (No. 3843.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.)
    1. Weapons <&wkey;l7 — Carryino Weapons — CRIMINAL PROSECUTIONS" — SUFFICIENCY OE Evidence.
    Evidence, in a prosecution for carrying a pistol, held sufficient to sustain conviction.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. &wkey;17.]
    2. Weapons <&wkey;17 — Carrying Weapons — Criminal Prosecutions — Evidence — Admissibility.
    Defendant, accused of carrying a pistol in a certain saloon, objected to evidence of his carrying it outside the saloon. IT eld, that it was admissible, where the occurrences outside the saloon were within a few moments of those inside as to which the offense was charged.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. &wkey;17.]
    3. Witnesses <&wkey;48 — Competency—Witness Accused oe Murder.
    That a witness is confined on a charge of murder does not render Mm incompetent to testify in another criminal prosecution, where lie has not been tried or convicted.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 109-115; Dec. Dig. <&wkey;>48.]
    4. Criminal Law <&wkey;763, 764^-Trial — Instructions — Weight oe Evidence.
    It is not error to refuse a requested charge that the jury should consider, on his credibility, that a witness was charged with murder, such a charge being on the weight of evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752,1768,1770; Dec. Dig. &wkey;763, 764.]
    5. Criminal Law &wkey;>1122 — Scope oe Beview —Ifailure oe Timely Objection.
    Defendant’s bill of exceptions, which fails to show that he presented a refused charge at the proper time, presents no question for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. 1122.]
    Appeal from Gonzales County Court; J. W. Holmes, Judge.
    Guy Moore was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Atkinson & Atkinson, of Gonzales, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted tor unlawfully carrying a pistol and assessed the lowest punishment.

Zeke Williams testified that, on or about the date the appellant was charged with carrying a pistol:

“I saw the defendant that day with a pistol. It was in Stahl’s Saloon in the town of Gonzales. He was standing at the har, and was ‘setting ’em up,’ and he held the pistol over his head and sorter waived it around. I was a few feet off, say as far as from here to that gate [indicating a gate to the bar of the court, some 12 or 14 feet off]. This was on the inside of Stahl’s Saloon, and defendant was at the counter and was drinking with other persons. There were present at that time, as I remember, Jim Parramore, Love Reed, the bartender, Houston Jones, and others, whose names I do not remember just at this time. I am certain it was a pistol because I saw him put it over his head, straight up in the air. This occurred inside of Mr. Stahl’s Saloon in broad open daylight. No, sir; I never had the pistol in my hand at all. Guy just. held it up above his head in his own hand.”

Houston Jones testified that he remembered the time he saw appellant with the pistol, about the date charged in the information. He said:

“He was standing on the sidewalk on the outside of Mr. Stahl’s Saloon in Gonzales, and he just pulled back his coat and showed me the pistol, and said that, ‘Nobody can carry this but me and Mr. Neighbors and Mr. Wright.’ [Mr. Neighbors is the sheriff of the county, and Mr. Wright is the constable of precinct No. 1, in which the town of Gonzales is situated.] I know the defendant well, and know that I saw him at that time with the pistol and heard (vhat he said, and cannot be mistaken about it. The pistol was a red-handled pistol, because I saw it and it looked like red cedar. No, sir; I never had the pistol in my hand at all, but just saw it in the hand of Guy’s pants.”

John Washington, after telling that he knew the appellant well and that he saw him in Gonzales about the time alleged in the indictment, testified:

“We were together on the outside of the saloon of Mr, Stahl, and he pulled back his coat and showed mo the pistol, and said that ‘he was a deputy sheriff.’ It appeared to me to be a black-handled pistol. He sort of pulled it up, and I judged it to be a black-handled pistol, with a black or blue steel cylinder and barrel. I am certain it was a pistol, and I thought at the time that the defendant was a deputy sheriff and had a right to carry the pistol. I never-had my hands on tho pistol at all, but just saw it sticking in the defendant’s pants, where he showed it to me.”

Mitchell Williams, after testifying that he knew appellant and saw him in Gonzales about the time charged in the indictment, testified:

“I saw him at or near the hamburger stand, next to Mr. Stahl’s Saloon, and he showed me a pistol sticking in the belt of his pants. He kinder pulled it up and showed it to me. The hamburger stand is located out on the sidewalk east of and near the saloon of Mr. Stahl.”

Newt Jones, after testifying that he was in jail in Gonzales confined on a charge of murder, testified:

“I saw the defendant, Guy Moore, some time on or about the date charged in the complaint, out on the sidewalk near Mr. Stahl’s Saloon, in the town of Gonzales, with a pistol on his person. He pulled back his coat and showed me the pistol. I thought he was an officer, because I believed that he would not show the pistol as he did unless he had a right to carry it. I am sure he had a pistol. I cannot be mistaken about it, because I noticed particularly the steel rim between the'handles on each side; that is, the steel rim to which each side of the handle of the pistol was riveted. I am sure it was the steel frame of a pistol that I saw. Guy Moore said, ‘Newt, you are all right and Mr. Neighbors [the sheriff of Gonzales County] thinks I am all right,’ and pulled up the pistol and showed it to me.”

Appellant introduced Louis Mueller, who testified that he carved out of wood an imitation pistol and sold it to appellant in January. This wooden imitation of a pistol was produced, identified, and introduced in evidence. He said that appellant, at the time he bought it, said that he wanted it to have some fun with the boys. Appellant testified and produced this wooden imitation pistol, and swore that at the time he was charged with this offense he did not have any pistol other than this wooden imitation. The wooden imitation is sent up to this court and properly identified. We have examined it. Appellant further testified:

“I had the pistol in the waist band of my pants and pulled back my coat and showed the article to several different boys, but I do not remember pulling it out and flourishing it about in the saloon, but I might have done so, for I had no intention of concealing it. I positively deny that I ever told any person that I was a deputy sheriff, either on that occasion or any other, and I also positively deny that I ever told any one that only myself and Mr. Neighbors and Mr. Wright could wear a pistol.”

He further testified that he had bought it from said Mueller and that he told him at the time that he was going to have some fun with it with the boys. He further testified :

“These boys may have thought I had a real pistol because it was my idea to fool them and have some fun with the imitation pistol. I do not remember who all I showed it to, but it was quite a number. I did not let any of them handle it because I knew they would see at once that it was not a pistol, and then my fun would be over.”

The court gave a correct charge, and therein required the jury to believe beyond a reasonable doubt that appellant had a pistol on the occasion charged before they could convict him. In addition, he gave this charge requested by appellant:

“You are further charged in this case at the request of the defendant that if you believe from the evidence, or have a reasonable doubt of the fact, that the article exhibited by the defendant at the time he is charged with carrying a pistol was anything other than a real weapon and'a complete pistol, then you will acquit tho defendant, and say by your verdict ‘not guilty.’ ”

The evidence was amply sufficient to sustain the verdict, and we cannot set it aside.

Appellant has some bills of exceptions to the testimony of some of the state’s witnesses, claiming that only what occurred about the pistol inside of Stahl’s Saloon was admissible, and that the testimony of the other witnesses that they saw him on the outside of tlie saloon witli the pistol was inadmissible. The court in qualifying his bills on this subject states that he allowed such testimony, because that at the time the witnesses testified about seeing the pistol on the outside was on the same day and within a few minutes of the time he was alleged to have been seen on the inside with said pistol. We think all this testimony was clearly admissible and the court’s ruling was correct.

The witness Newt Jones was not incompetent to testify because he was confined in jail on a charge of murder, as there is no intimation that he had ever had a trial or had ever been convicted of that offense.

Nor did the court err in refusing appellant’s charge instructing the jury that they should consider the charge of murder pending against said witness as affecting his credibility. This would have been on the weight of the testimony.

However, this question is not presented in such a way that we can consider it. He made no objection to the court’s charge, because the court did not charge on that subject ; nor does his bill show he presented his charge to the court at the proper time.

The judgment is affirmed. 
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