
    DAVIS v. STATE.
    (No. 3730.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1. Weapons <&wkey;17 — Unlawfully Carrying Pisto i^Evidence — Sufficiency.
    Evidence in a prosecution for unlawfully carrying a pistol held sufficient to sustain a conviction. ■
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. <S&wkey;17.]
    2. Criminal Law <&wkey;829 — Requested Charge —Giving Effect.
    Where, in-a prosecution for unlawfully carrying a pistol, the court gave a charge fairly presenting the issue, and in the language selected by accused, it was unnecessary to give other special charges requested by accused on the same issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. @=3829.]
    3. Weapons &wkey;>8 — Carrying Pistol — In-structio n — Refusal.
    In a prosecution for unlawfully carrying a pistol it was not error to refuse to charge that, if the jury believed the pistol was broken and would not shoot, “or” that it was unloaded at the time when, etc., there should be an acquittal, since it is not the law that' one carrying an unloaded pistol is guilty of no offense.
    [Ed. Note. — For other eases, see Weapons, Cent. Dig. § 7; Dec. Dig. <&wkey;8.j
    4. Criminal Law <&wkey;1028-Misdemeanor-
    Conviction — Questions Considered.
    Upon appeal from a conviction of a misdemeanor, the court can pass only upon such questions as are properly raised in the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2619, 2620; Dec. Dig. <&wkey;> 1028.]
    5. Criminal Law <&wkey;822 — Charge—Contradiction — Effect.
    In a prosecution for unlawfully carrying a pistol, the objection that the charge as given was contradictory cannot prevail, where the charge, read as a whole, was clear in meaning, and could. not have misled the jury.
    [Éd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991,1994, 1995, 3158; Dec. Dig. <&wkey;>822.]
    Appeal from Henderson County Court; G. D. Owen,' Judge.
    Sing Davis was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Miller & Miller, of Athens, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at 60 days’ imprisonment in the county jail.

The first contention of appellant is that the evidence will not sustain a conviction. John Hill, John Ross, and Lillie Ross all testify that John Ross was working with an unbroken horse when appellant came walking along; that he stopped and began to assist Ross with the horse, and while doing so a pistol fell out of his pocket; that John Hill picked up the pistol and offered it to appellant, when appellant asked him to take care of it for him, as he (appellant) would go with John Ross to Franklin. John Hill testified that he carried the pistol to his home, and appellant afterwards came to his house and got it. This is certainly positive evidence that appellant had the pistol on that occasion; in fact, he so testifies himself, but says he had let his brother have the pistol to have it fixed; that his brother had neglected to do so, and, being over at his brother’s that morning, he was carrying the pistol back to his home; that it was unloaded, was broken, and would not shoot. It would be a question whether or. not the jury would believe his explanation of his possession on this occasion, and apparently they did not do so. The other witnesses present did not notice that the pistol was broken in any particular.

At appellant’s request the court instructed the jury:

“You are instructed that, if you believe from the evidence that the defendant, Sing Davis, was carrying a pistol from his brother’s home to his own home at the time complained of, and that he was proceeding on his way home along a route a person would usually or ordinarily travel in going from the place or home of George Davis to defendant’s home, you will acquit this defendant, and this although you may believe from the evidence that the defendant, while thus proceeding on his way home, stopped by at Ross’ place to assist in the managing of the wild horse.”

This presented the issue fairly and in language selected .by appellant; therefore it was unnecessary to give the other special charges on that issue 'requested by appellant.

Appellant also requested the court to instruct the jury: '

“I charge you, as a part of the law in this case, that if- you believe from the evidence -that the pistol was broken and it would not sboot, or that it was unloaded at the time named, you will acquit the defendant.”

The court did not err in refusing to give this special charge, for it is not the law of this state that, if one carries an unloaded pistol, he is guilty of no offense. He could very easily have cartridges in another pocket, and in a moment’s time could convert it into a loaded one. Had the appellant requested the court to instruct the jury that, if the pistol was broken, or so out of repair that it would not shoot and could not be fired, he should have done so.

But this is a misdemeanor conviction, and we can only pass on such questions as are properly raised in the trial court. No exception was reserved to the court’s charge, because he did not so instruct the jury in his main charge, although another exception to the charge was reserved, and that is that the charge as given was contradictory in its terms. This is not a correct construction of the charge, 'but, when read as a whole, its meaning is clear, and could .not have misled the jury.

If appellant’s contention, as made by his testimony alone, had been believed, of course he would not be guilty under the law, but the jury did not believe his explanation of his possession of the pistol, or as to its condition, and we cannot say, at this distance, they ought to have done so.

The judgment is affirmed. 
      (gnmFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     