
    SLACK v. STATE.
    (No. 10924.)
    Court of Criminal Appeals of Texas.
    June 8, 1927.
    (. Criminal law <&wkey;lll5(l) — Bill of exceptions, complaining of search without warrant, did not present error, when recitals negatived claim of search.
    Bill of exceptions on appeal from conviction for unlawfully carrying a pistol, complaining of search without a warrant, held not to present error, where recitals negatived claim of search of defendant’s person, in that it appeared that defendant, on suggestion of son, voluntarily handed pistol to sheriff.
    2. Criminal law <&wkey;72I (6) — Remarks of state’s counsel on failure to offer evidence to disprove state’s testimony held not erroneous, where there were other persons to contradict testimony.
    Statement by counsel for state relative to defendants having offered no evidence to disprove testimony that sheriff took a gun off of him held not erroneous, where it appeared that there were persons other than defendant available, by whom he might have contradicted state’s testimony, had he desired to do so.
    3. Weapons &wkey;>l 3 — Possession of pistol is not justified on ground of fear of attack (Pen. Code 1925, art. 484).
    Pen. Code 1925, art. 484, relative to unlawfully carrying a pistol, does not justify possession of pistol on ground that defendant was in fear of an attack.
    Appeal from Beeves County Court; H. N. McKellar, Judge.
    T. F. Slack was convicted for unlawfully carrying a pistol, and he appeals.
    Affirmed.
    T. F. Slack, of Pecos, in. pro. per.
    Sam D. Stinson, State’s Atty., and Bobt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MOBBOW, P. J.

Unlawfully carrying a pistol is the offense; punishment fixed at a fine of $100.

No statement of facts makes known to this court the evidence which was before the trial court. There are three bills of exceptions. The first bill complains of the search without a warrant. The recitals in the bill negative the claim that there was a search of the appellant’s person. It appears therefrom that, upon the suggestion of his son, the appellant voluntarily handed the pistol to the sheriff.

Bill No. 2 complains of the following remarks of counsel for the state:

“The sheriff testified that he took a gun off of the defendant; although he was given every opportunity to do so, the defendant offered no evidence to disprove it.”

Prom the bill it appears that the appellant had offered no evidence justifying his act. It does not appear from the bill that there were not other persons available to the appellant by whom he might have contradicted the state’s testimony, had he desired to do so. On the contrary, the recitals in bill No. 1 show that the appellant’s son and other persons were present and witnessed the transaction upon which the prosecution was based. Based upon many precedents, the rule was thus stated in Boone’s Case, 90 Tex. Cr. 377, 235 S. W. 580, 582:

“The statute is not shown to have been infringed, however, by disclosing that counsel, in argument, used langu'age which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition the implication must be a necessary one, that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence, or the absence of other evidence to which remarks may reasonably have, been applied by the jury, the statute is not transgressed.”

The . above principle would control in the present case.

Bill No. 3 complains of the refusal of the court to receive evidence attempting to justify the possession of the pistol upon the ground that the appellant was in fear of an attack. The law formerly recognized such a defense, but the statute has been amended so as to omit it. See article 484, P. 0. 1925.

Einding no error in the record, the judgment is affirmed. 
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