
    SPARKS v. STATE.
    (No. 3934.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.
    On Motion for Rehearing, Feb. 16, 1916.)
    1. Criminal Eaw <®=3iQ87 — Appeal—Record — Showing Recognizance oe Confinement.
    To confer jurisdiction on the Court of Criminal Appeals, the record on appeal from a conviction must disclose that a recognizance was given, or that defendant is in jail and has been continuously confined therein.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2770-2781, 2794; Dec. Dig. <©=1087.]
    On Motion for Rehearing.
    2. Weapons <@=317 — Carrying Pistol — Place.
    The evidence, not showing defendant was off the premises on which he lives, does not authorize a conviction of unlawfully carrying a pistol.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. <©=»17.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Johnie Sparks was convicted, and appeals.
    Reversed and remanded.
    Ralph P. Mathis, of Wichita Falls, 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 30 days’ confinement in the county jail.

The Assistant Attorney General moves to dismiss the appeal, there being no recognizance in the record, and it not affirmatively appearing by the record that appellant is in jail. The record must disclose that a recognizance has been given, or that the appellant is in jail and has been continuously confined therein, to confer jurisdiction on this court. McHenry v. State, 42 Tex. Cr. R. 469, 60 S. W. 880; Harris v. State, 2 Tex. App. 134; Brinson v. State, 160 S. W. 776, and cases collated under article 918 of Vernon’s Ann. Code Cr. Proc.

The appeal is dismissed.

DAVIDSON, J., not present at consultation.

On Motion for Rehearing.

HARPER, J.

On a former day of this term this case was dismissed because the record contained no recognizance, and did not affirmatively show that appellant was confined in jail. Attached to the motion for reinstatement is the certificate of the clerk to an order, omitted from the original transcript, showing that appellant failed to give recognizance and was committed to and confined in jail. Therefore the cause is reinstated, and the order of dismissal set aside.

It is shown beyond question that appellant had the pistol on the occasion in question and fired it off. His defense is that it was Christmas time, and he did not know it was an offense to shoot the pistol; that he never got off the premises on which he was living. The state, by its evidence, does not make it clear that appellant was off the premises on which he was residing. On another trial, if this be true, this fact should be shown, when the testimony would sustain a conviction for unlawfully carrying a pistol, for the state’s case is that he was not “celebrating,” but shooting for a different reason. However, as the evidence does not show that appellant was off the premises on which he was living, the judgment will be reversed, and the cause remanded. Even though appellant was guilty of an offense in shooting off the pistol, he would not be guilty of unlawfully carrying a pistol if he did not carry it off the premises on which he was living.

The judgment is reversed, and the cause remanded.  