
    LILLY v. STATE.
    (No. 9678.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1926.)
    1. Weapons <&wkey;>6 — • If accused did not carry pistol to place of fight, and if it was given him after fight began, he would not be guilty.
    In prosecution for unlawfully carrying pistol, where accused defended on ground that pistol was given him by another after fight started, he was entitled to instruction that, if he did not carry pistol to place of difficulty, but if it was handed to him after fight began, and he had no occasion to use it but in the fight, he would not be guilty.
    2. Weapons c&wkey;l7(3) — Testimony that witness after an affray got possession of pistol and gave it to accused’s father inadmissible.
    In prosecution for unlawfully carrying pistol, defended on ground that pistol was given to accused by another after fight began, testimony that witness got possession of pistol after affray, and subsequently delivered it to accused’s father, held inadmissible.
    Appeal from Polls County Court; R. H. Jones, Special Judge.
    Dave Lilly was convicted of unlawfully eai’rying a pistol, and he appeals.
    Reversed and remanded.
    F. Campbell, of Livingston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

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

There was a Christmas tree gathering at the Sunflower schoolhouse. The appellant, his two brothers, and many other people were present. A fight took place in which Peyton Bailey and the appellant participated. Appellant was struck by .Bailey under the belief that appellant had made a disturbing noise. Appellant was either pushed or knocked out of the door into the yard. His brother seized Bailey until the appellant reentered the door and struck him with a pistol. No pistol had previously been seen in the possession of the appellant. He introduced much affirmative testimony supporting his own, to the effect that he did not carry a pistol to the gathering, but that, after the fight began, and as he was knocked out of the house, some one unknown to him put the pistol in his hand, and he used it as a bludgeon, but with no effort to shoot. The evidence also affirmatively showed that he did not carry the pistol away.

Appellant sought by exception to the charge and by special charge to have the jury instructed, in substance, that, if he did not carry the pistol to the place of the difficulty, but that, after the fight began, -it was handed to him, and that he had no other connection with it than to use it in the fight, he would not be guilty. In our opinion, it was the appellant’s right to have this defensive theory submitted to the jury. The cases of Pyka v. State, 80 Tex. Cr. R. 644, 192 S. W. 1066, Rees v. State, 97 Tex. Cr. R. 577, 263 S. W. 910, and the precedents to which reference is made in those decisions, support the contention of the appellant.

A witness, testified that he got possession of the pistol after the affray, and subsequently delivered it to the father of the appellant. This testimony was received over the objection of the appellant. In our opinion, if it is offered upon another trial, it should be rejected.

For the reasons stated, the judgment is reversed, and the cause remanded. 
      &wkey;3Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexe» ’
     