
    KNOBLE v. STATE.
    (No. 9293.)
    (Court of Criminal Appeals of Texas.
    June 3, 1925.)
    1. Weapons ‘ <&wkey;17(6) — Charge that accused could carry revolver for no- other purpose than to deliver it to mother error.
    In prosecution for carrying revolver, based on theory that accused and her brother were seeking to forcibly send her father out of city, where defense was that accused was carrying revolver to her mother, instruction to acquit if she was carrying it for that purpose and for no other purpose held error.
    2. Witnesses <&wkey;>277(2) — Cross-examination of accused as'to why she did not stop readily when officer tried to stop her improper under showing.
    In prosecution for carrying pistol, where officer testified that accused, did not stop on his request, cross-examination of accused, showing that she did not stop readily, held improper, in absence of any showing that officer had a right to stop her; there being no inference of seeking to avoid arrest in failure to stop readily merely to converse with officer.
    3. Weapons <&wkey; 17(3) — Testimony of what happened at accused’s home on night of offense, and what happened after she left home, competent, in charge of carrying weapons.
    In prosecution for carrying a pistol, based on theory that, on account of unhappy relations between her father and mother, accused was seeking to forcibly send fáther out of city, testimony of what transpired at home of father on night alleged offense was committed, as well as what happened after she left that home, held admissible, in support of state’s theory that pistol was being carried to force father to leave city.
    Commissioners’ Decision.
    Appeal from Tarrant County Court at Law; P. W. Seward, Judge.
    Orline Knoble was convicted of carrying a pistol, and she appeals.
    Reversed and remanded.
    Houtchens & Clark, of Fort Worth, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted, in the county court at law of Tarrant county, for the offense of carrying a pistol, and her punishment assessed at a fine of $350. This is the second appeal of this case; the first being reported in 96 Tex. Cr. R. 620, 259 S. W. 580, where a sufficient statement of the facts will be found.

It was the theory of the state in this case that, on account of the unhappy relations between the father and mother of this appellant, with whom she lived in the city of Fort Worth, she, in connection with her brother, were seeking to forcibly send her father out of the city. It was the appellant’s theory that her mother, on the day the offense is, alleged to have been committed, had moved her residence from their former home in Fort Worth to Handley, where her mother was living with her sister. Appellant further contended that her mother had sent her word to bring her pistol to her at Handley, together with some other personal belongings, and that she was on her way to Handley with the pistol at the time she was arrested. The record shows that the appellant lived with her mother and father up to the time of their separation, and it is sufficient to clearly show that, when they separated on the day the pistol is al-. leged to have been carried, appellant had chosen to cast her lot with her mother. Uni der these conditions the court charged the jury that if they believed from the evidence that the defendant, at the time of her arrest, was acting under and through a message to the defendant by the witness Mrs. Clay, wherein defendant’s mother requested the witness Mrs. Clay to tell defendant to bring her mother’s clothing and pistol to her, and that the defendant was carrying the pistol' in question in response to saicl message and for no other purpose, or if the jury should have a reasonable doubt thereof, to acquit the defendant. Under the facts above stated, we think the limitation to the effect that appellant could carry the pistol for no other purpose than in response to her mother’s message; under the peculiar facts of this case, was not justified. It. is clear that appellant had the right to make her home with her mother, and, if she was carrying the pistol of her own volition from her former home, where her father and mother resided together, to her new home that her mother had but that day established, she would have the right to do so. This matter was called.to the court’s attention hy appellant’s charge No. 2, which was to the effect that, if the defendant was carrying said pistol from her home in North Fort Worth to the place where her mother lived in Hand-ley, and was in a direct route while carrying the same from one of said places to the other, then the defendant would not be guilty of the offense of unlawfully carrying a pistol. We think it clear that this charge should have been given.

The record shows that the witness McKinney, a police officer in the city of Fort Worth, testified for the state. The substance of his .testimony is that he saw appellant on the night of January 17, 1923, on North Main street; he tried to stop her to have a conversation with her, but that she did not stop until they got down to Commerce' street; that she was in an automobile; and that he found a gun which she was carrying. The -record is utterly silent as to why this police officer sought to stop this appellant while she was driving on the streets of Fort Worth, and is utterly silent as to why he desired to have any conversation with her. He further testified that when he tried to have a conversation with her she poked a six-shooter in his face and said, “Unload, you roughneckthat, at the time she made this statement, he was on the running board of the car. As above stated, the record fails utterly to disclose the reason given by this officer for being on the running board of this car, and for seeking to indulge in any conversation with this appellant. Under this' statement of facts, the record discloses that, over appellant’s objection, the state was permitted to prove by appellant on cross-examination that sh,e did not stop readily when the pfficer tried to stop the car. Various objections are urged by appellant to this testimony. There is nothing in this record showing or tending to show that this officer had the right to stop this ear. Of course, if he had such right, and was acting in his official capacity in so doing, it was within the power, and it was clearly the duty, of'the state to show these facts, and this burden is not met by the mere fact that the witness was a police officer. This court is not willing to hold that mere proof that-witness is a police officer will warrant the inference of seeking to avoid an arrest because a party does not readily stop when such officer seeks to converse with such party. In the present state of the record we think the testimony should not have been admitted. We would not be understood, of course, as holding that, if the police officer was exercising any legal right at the time, it would not be proper to prove this transaction. Our holding is that the record is entirely silent as to why he stopped this appellant and as to why he wanted to have a conversation with her.

There are many hills of exception in the record objecting to the testimony as to what transpired at the home of the father of appellant on the night the offense is alleged to have been committed, as well as to what transpired after appellant left the home of her father. We think this testimony is admissible as supporting the state’s theory that appellant was carrying the pistol to aid her in forcing her father to leave the city, and was not either carrying it to her mother or carrying it to her mother’s home.

For the errors above discussed, it is our opinion that the judgment should be reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judgés of the Court of Criminal Appeals, and approved by the court. 
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