
    MILES v. STATE.
    (No. 3727.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1. Weapons ®=»17 — Carrying Weapons— Prosecution — Instructions.
    Defendant, charged with carrying a pistol, produced evidence that the pistol was defective, and that it could not be fired, and requested an instruction that if the jury so believed, they should acquit him. The judge refused in any way to submit the issue thus made. Held, th'at the question was for the jury, and refusal to submit it to" the jury was error.
    (Ed. Note. — For other cases, see Weapons, Cent Dig. §§ 20, 22-33; Dec. Dig. <S=»17.]
    2. Weapons <@=38 — Carrying Pistols — Defective Pistol.
    It is not an offense to carry a pistol either so defectively manufactured or in such bad repair that it cannot be fired at all.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 7; Dec. Dig. <@=»8.j
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Lee Miles was convicted of carrying a pistol, and appeals.
    Reversed and remanded.
    J. C. Lumpkins, of Waxahachie, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of carrying a pistol, and fined $100. The testimony showed he carried, at the time alleged, what all the witnesses called a pistol, and so did he. He and other witnesses further testified that it would not shoot and could not be made to shoot, and that they had both before, and about the time he was charged with carrying it, and soon afterwards, tried time and again to shoot it, but it would not shoot and could not be made to shoot;' that the plunger was so short it would not strike the cap and explode the cartridge.

Appellant, in due time, prepared in writing and presented to the judge special charges, submitting to the jury, in effect, that if they believed from the evidence the pistol was so defective in the particular claimed that it could not be fired or discharged, and could not be used for the purpose for which pistols are manufactured and spld, to acquit him. The judge refused all his special charges submitting this issue, and expressly refused to submit that issue at all. Appellant timely excepted to the court’s charge and to the court’s refusal to give any of his said charges, by proper bills. It may be the judge did not believe appellant and his witnesses on this point, as the pistol was itself introduced in evidence, and it may be the jury also might not have believed them. However, we believe it was necessary for the court, by proper charge, to submit the question to the jury for them to decide it. 1-Ie could not do so himself, whatever his belief as to the facts.

Possibly this exact question has not been before decided by this court, but the decisions are that it is not an offense to carry a pistol if it is so out of repair that it cannot be fired at all, and this, ft seems, would include the fact, if so, that it was so defectively manufactured that it could not be fired at all. Cook v. State, 11 Tex. App. 19; Blackburn v. State, 58 Tex. Cr. R. 48, 124 S. W. 666; Farris v. State, 64 Tex. Cr. R. 530, 144 S. W. 249. Other cases are to the same effect. It was not held, nor intended to be held otherwise, in Steele v. State, 73 Tex. Cr. R. 352, 166 S. W. 511.

The judgment is reversed, and the cause remanded.  