
    ESCONTRIAS v. STATE.
    (No. 8325.)
    (Oourt of Criminal Appeals of Texas.
    Nov. 5, 1924.)
    1. Weapons <&wkey;I7(2) — Defendant found in possession of pistol on his person was required to justify possession by evidence that he was within exceptions to statute.
    In prosecution, for unlawfully carrying pistol, defendant, having been found in possession of pistol about his person, was required to justify his possession by evidence that he was within the exceptions to the statute.
    2. Weapons <&wkey;l7(4) — Evidence held to sustain conviction of special police officer for carrying a pistol.
    In prosecution for carrying a pistol, evidence that defendant, though special police officer, interfered with constable’s attempt to arrest a certain person, exhibited his pistol and threatened to shoot the constable, and subsequently used it as a bludgeon in an affray, 'held to sustain conviction as against the defense that he used the pistol in actual discharge of official duty.
    3. Criminal law &wkey;364(i/2)— Evidence as to use made of pistol held admissible as part of res gestee in prosecution for unlawfully carrying pistol.
    In prosecution for carrying pistol, evidence as to use made of pistol by defendant held admissible as part of res gestee.
    4. Criminal law &wkey;l 169(2) — Any error in admitting evidence in prosecution for unlawfully carrying pistol, held harmless.
    In prosecution for unlawfully carrying a pistol, in which the evidence was sufficient to sustain conviction, and the lowest penalty was assessed, any error in admission of evidence was harmless.
    Appeal from El Paso County Court; E. B. McClintock, Judge.
    Juan Escontrias was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Owen & Bridgers, Coggin, Hunter & Brown, and R. B. Redic, all of El Paso, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for unlawfully carrying a pistol; punishment fixed at a fine of $100.

The appellant’s possession of the pistol was shown without dispute. He attempted to justify upon the ground that he was a police officer of the city of El Paso; that he had been assigned to detective work by the chief of police, and had gone to Socorro in El Pasco county, where the offense was charged to have been committed, on a detective mission.

Appellant said he was a regular police officer on the pay roll under the chief of police. 1-Iis compensation was not stated. It seems that some weeks before the transaction occurred, a murder had taken place, and that the appellant had been selected by the chief of police and “put on the ■special job of locating the murderers.” Appellant claimed that at a dance in Socor.ro, he saw in company with others, Vicente Hernandez, one of the persons charged or suspected with the murder. Appellant was called aside and offered a drink by Victor Apodaca, who produced a demijohn, and was then arrested by Carras-co, a deputy constable. Appellant .requested that Apodaca be released, and upon his release started to take him to his home, but turned back and asked Carrasco if he - was angry. Upon receiving the reply that he was not angry, appellant told him that he was in need of help to arrest Vicente Hernandez. At that time, according to the appellant, he was struck and knocked down, the constable and deputy constable both assaulting him. Appellant denied that he fired his pistol, and said:

“I did not try to arrest that man myself, because I had not right to carry a gun.”

According to the state’s testimony, he was making use of it in a manner inconsistent with his official duty as an officer.

The statute declares, with certain exceptions, that persons are forbidden to carry a pistol on or about their person. Within the exceptions is a peace officer “while in the actual discharge of his official duty,” but a deputy constable or special policeman who does not receive a compensation of $40 or more per month for his services as such officer is not exempt. Having been found in possession of the pistol about his person, it was necessary that the appellant justify his possession by evidence that he was within the exceptions to the statute. Jones v. State, 91 Tex. Cr. R. 242, 238 S. W. 661, and cases cited therein.

Erom the state’s testimony it is inferable that the supposed murderer, Hernandez, was not seen by the appellant, and was not present upon the occasion of the alleged transaction ; that the appellant was in company with one Apodaca, who had intoxicating liquor in his possession; and that upon the attempt of the constable to arrest Apodaca, the appellant interfered, exhibiting his pistol, threatening to shoot the constable, and subsequently used it as a bludgeon in an affray.

From the state’s version of the testimony, it cannot be said that the appellant was a peace officer in the actual discharge of his official duty. The judge who tried the case without a jury was privileged to accept the state’s theory, and his action in doing so is binding upon this court.

There was no error in showing the use made by the appellant of his pistol. It was part of the res gestee. However, if improperly received, it would not work a reversal ; the evidence being sufficient, and the lowest penalty assessed.

The judgment is affirmed. 
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