
    TUCKER v. STATE.
    (No. 6179.)
    (Court of Criminal Appeals of Texas.
    June 24, 1921.)
    1. Weapons <®=o7 — Not' unlawful to carry brass knuckles found-on highway.
    One who found brass knuckles on highway and picked them up and was carrying them without any unlawful purpose was not guilty of crime.
    2. Weapons <$t»(7(4) — Conviction for carrying brass knuckles sustained.
    In a prosecution for unlawfully carrying brass knuckles, evidence held, to warrant a conviction.
    Appeal from Leon County Court; C. O. Craig, Judge.
    Pleas Tucker was convicted of unlawfully carrying brass knuckles, and he appeals.
    Affirmed.
    O. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   HAWKINS, J.

The conviction is for unlawfully carrying brass knuckles. The state used one witness only. By him it is proved that while he and the sheriff of the county were in the woods near .the farm of Jerry Betts, on the morning of the 3d of September, • looking for bootleggers, they saw Jerry Betts and appellant near some barrels which had mash in them; that they emptied one of the barrels and started away, when the witness and the sheriff halted them and searched them and found in the pocket of appellant a set of metal knuckles. The witness said that Belts declared that when appellant came to the house of Betts the latter was in the field picking cotton. The witness also said that when’arrested , the appellant was not going in the direction of his home.

Appellant testified that he resided about a half mile from the home of Betts; that on the morning in question he had, while on the way. to the home of Betts for the purpose of getting some watermelons, and while traveling on the public road, found a set of metal knuckles, picked them up, and carried them in his hand to the home of Betts; that he found Betts and one Lewis Follie near the mail box; that he exhibited the knuckles to them and after some conversation started, in company with Betts, to the field after the melons. On reaching the melon patch they saw in the field some hogs, and in undertaking to drive them out they scattered, some of them going into the woods, where appellant ■ and Betts followed them, and came upon some barrels with what they called “mash” in them; that they emptied one of the barrels and continued to pursue the hogs, and when about 30 steps from the barrels were halted by the sheriff and the' state’s witness Bain', a deputy sheriff; that he was searched and the knuckles which he had found were in his possession; that he had previously exhibited them and intended to carry them home and had no intention of violating the law; that he had no connection with any still.

The witness Follie testified that he, in company with Betts, at the home of the latter, were engaged in a conversation near the mail box when the appellant approached with metal knuckles in his hand, stating that he had found them upon the public road some 300 yards distant; that he saw the appellant and Betts go toward the field of Betts for the purpose of getting melons.

Betts testified as to the transaction and all its details after appellant’ came into his presence. His testimony coincides with that of the appellant.

It will be seen from the 'foregoing statement of the’testimony that 'appellant and his witnesses, Follie and Betts, make out a complete defense, if-their testimony is to be believed. Can we discover in the record any reason for casting doubt upon their statements. Follie and Betts testified that they were near a mail box in front of Betts’ • house ' when appellant approached them with the metal knuckles in his hand, and that- the conversation detailed by them occurred at that point. The witness Betts, . while on the witness stand, was asked if he did not tell the sheriff and the deputy that when the appellant came to his house on the morning of - the . arrest he (Betts) was down in. his field picking' cotton. He denies this, and asserts that he told the officers that he was in the field 'picking cotton the evening before. The deputy sheriff was placed upon the witness stand in rebuttal by the state, and testified pointedly that Betts did not tell him at the time of the arrest that- he was at his house when Pleas Tucker came up there, but did tell him that he (Betts) was down in his field picking cotton at the time the appellant came to his house.

This will probably explain why the issue of fact raised by the testimony of appellant and his witness, and involving a- defensive theory, was disbelieved in the trial of the case. It was purely a question of fact; the issue was for the court or jury on the trial; and, it having been solved against appellant, we fail to find anything in the record to authorize a reversal of the case, and the judgment of the trial court is therefore affirmed. 
      ig=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     