
    WELCH v. STATE.
    (No. 10438.)
    Court of Criminal Appeals of Texas.
    Nov. 24, 1926.
    Rehearing Denied June 8, 1927.
    1. Criminal law 1056(I) — Without exception to court’s charge Submitting defense, refusal of special charge stating defense in more detail would not be reversible error.
    Where defendant prosecuted for carrying pistol did not except to charge of court in general terms submitting defense that he was a traveler, refusal of special charge, though submitting defense in more detail, would not be reversible error.-
    2. Criminal law 1122(6)— Bill must show refused special charges were submitted before main charge and before argument, to be considered.
    Bill of exceptions complaining of refusal of defendant’s special charges must show that they were submitted before main charge was read to jury and before argument of case, to be considered.
    3. Criminal law @=l 169(2, 6) — Error in admitting testimony in prosecution for carrying pistol held not injurious, where undisputed testimony showed defendant had pistol, and lowest penalty was given.
    Where there was no dispute, in prosecution fgr carrying pistol, that defendant had pistol and jury assessed lowest punishment, errors, if any, in admitting testimony that whisky was found in defendant’s car and in admitting hearsay, helé not injurious to defendant.
    4. Criminal law IF68(2) — Refusal to re-, quire officer to file search warrant for liquor as to which he testified in prosecution for carrying pistol held not error.
    In prosecution for carrying pistol, refusal of court to require state to file search warrant that officer arresting defendant claimed he had to search defendant’s car for liquor helé not error, in absence of showing that warrant would have helped accused.
    5. Criminal law <§=>394 — Admission of testimony of search of car in which pistol was found on ground that search was illegal heid not error.
    In prosecution for carrying pistol found in defendant’s car, admission of testimony as to search of car, objected to on ground that search was illegal, helé not error.
    6. Criminal law <§=>l 141 (2) — Burden is on party asserting error to make showing thereof in his bill of exceptions.
    Party asserting error has burden of showing-error in his bill of exceptions.
    On Motion for Rehearing.
    7. Arrest @=>63(4) — Person unlawfully carrying arms may be arrested without warrant on officer’s own knowledge or on information -of some credible person (Pen. Code 1925, art. 487).
    Under Pen. Code 1925, art. 487, authorizing an arrest, person unlawfully carrying arms may be arrested by officer without warrant on own knowledge or on information of some credible person.
    8. Criminal law @=>394 — Testimony by officer-observing pistol in car of defendant, prosecuted for carrying pistol, while searching for-whisky, held not inadmissible as obtained through illegal search (Code Cr. Proc. 1925, art. 727a; Pen. Code 1925; art. 487).
    "Where officer having warrant to search defendant’s car for whisky and observing pistol in defendant’s ear was authorized by Pen. Code-1925, art. 487, to arrest defendant for unlawfully carrying pistol found in his ear, testimony of officer was not prohibited by Code Cr. Proc. 19-25, art. 727a, forbidding use of evidence obtained through illegal search.
    Appeal from Concho County Court; D. C.. Broyles, Judge.
    R. A. Welch was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Anderson & Mobley, of San Angelo, for appellant.
    Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction in county court of Concho county of unlawfully carrying a pistol; punishment, a fine of $100.(

Appellant was found with a pistol behind the seat in his car. He admits that the car- and the pistol were his, but claims that he-was on his way from his home to Houston, and that he was a traveler. The court submitted the legal proposition that if appellant was a traveler, or if they had a reasonable doubt thereof, he should be acquitted. The jury settled the question of fact against him.

Appellant presented a number of special charges to the trial court and here complains because of the refusal of said court to give them to the jury. There -was no exception taken to the charge of the court which submitted the proposition of an acquittal in case appellant was a traveler, in general terms. There being no such exception, the refusal of a special charge, even if it submitted, the issue of being a traveler more in detail, would not be reversible error. Tyler v. State, 67 Tex. Cr. R. 601, 150 S. W. 782; Boattenhamer v. State, 84 Tex. Cr. R. 210, 206 S. W. 344; Parroccini v. State, 90 Tex. Cir. R. 320, 234 S. W. 671; Rylee v. State, 90 Tex. Cr. R. 482, 236 S. W. 744. Attention is also called to tLe fact that in appellant’s bills of exception complaining of the refusal of his special charges there appears no showing that such special charges were submitted to the court before the main charge was read to the jury and before the argument of the case. Such showing is necessary.

There appears complaint of testimony showing that there was a quantity of whisky in appellant’s car at the time of his arrest, and also of certain statements made by one witness to another, which would appear hearsay. In view of the fact that there was no dispute in the testimony of the fact that appellant had the pistol, and it appearing that the jury gave him the lowest punishment for said offense, and that he defended only on the proposition that he was a traveler, we are led to the conclusion that the errors thus complained of seem in no way to have injured appellant.

The officer who arrested appellant said that he had a search warrant to search the car of appellant for liquor. Appellant moved that the state be required to file the search warrant so that he might thereafter inspect same. We perceive no error in the action of the court declining to compel the officer to file the search warrant. The bill of exceptions sets out no facts showing that the filing of such warrant would be of help to the accused.

Appellant objected to testimony of the search of the car which resulted in finding the pistol in question, merely making the objection that the search was illegal. Nothing appears in the bill of- exceptions supporting said proposition. The burden is upon him, who asserts error, to make showing thereof in his bill of exceptions.

We have carefully examined each bill of exceptions in the record and find no error in any of them. An affirmance will therefore be ordered.

On Motion for Eehearing.

MOEEOW, P. J.

Miller, the sheriff of Con-cho county, was called upon by the city marshal of Eden to assist in apprehending some men. Miller had been told by the city marshal that the men he was after were a “tough crew,” and if interfered with by the officers, they would fin'd themselves at the “smoky end of a 41.” The officers then went to the place where the automobile of the appellant and his companion was stopped. They separated as they approached the car, and the appellant was standing by the car near the door with his foot on the running board and talking to one of the men who was drilling a well. Another man was in the car, sitting under the steering wheel. The officers had a warrant to search the car for whisky. Paris (the city marshal) had the man in the car to get out, and when he did so, Paris reached in the car and got a .41 caliber Colt pistol. The appellant and his companion were then arrested by the officers. Paris testified that he suspected the parties of bootlegging and called Miller over the telephone to come and help him arrest the men. Paris, Miller, and Gates went to the car, and when Paris made the man get out of the ear, he saw the pistol. It was partly behind the seat and half of the pistol could be seen. ■ The witness had seen the appellant earlier on the same night, when he pulled something out of his shirt front and put it in the seat cushion back of him, which the witness took to be a pistol.

The appellant testified that he lived at Eden, and was traveling in an automobile to Houston; that he was near San Angelo when arrested. The issue of traveler was submitted to the jury and decided against the appellant. As stated in the original opinion, the complaints of the charge are not available because of noncompliance with the statutes on procedure. In his motion for rehearing, appellant contends that the information that he had a pistol was illegally obtained and that in consequence thereof the evidence was not admissible. Upon the subject of pistol carrying, we have.a special statute authorizing an arrest, which reads thus:

“Any person violating any article of this chapter may be arrested without warrant by any peace officer and carried before the nearest justice of the peace. Any peace officer who shall fail or refuse to arrest such person on his own knowledge, or upon information from some reliable person, shall be fined not exceeding five hundred dollars.” Pen. Code 1925, art. 487.

The decisions under this article are numerous to the effect that a person unlawfully carrying arms may be arrested by an officer without warrant upon his own knowledge or upon information of some credible person. See Jacobs v. State, 28 Tex. App. 79, 12 S. W. 408, and cases collated in Vernon’s Tex. Crim. Stat. 1925, vol. 1, p. 283.

In our opinion, the provision of the statute mentioned and quoted above was adequate authority for the arrest of the appellant by the officers for unlawfully carrying a pistol. The arrest being authorized by the. special statute to which reference is made, the testimony of the officers was not inhibited by article 727a, C. C. P. 1925, forbidding the use of evidence obtained through an illegal search.

The motion for rehearing is overruled. 
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