
    SOLOSKY v. STATE.
    (No. 6519.)
    (Court of Criminal Appeals of Texas.
    Jan. 11, 1922.)
    1. Criminal law <§=>365(1) —Testimony as to another offense admissiblei where necessary to prove crime charged.
    In prosecution for unlawfully carrying a pistol, testimony that defendant went to the house where his divorced wife was living, and when wife came to the door he drew pistol and pointed it at her, held admissible under res gestse rule as against contention that it constituted evidence of a different offense, since the acts to which such testimony related were so interrain-' gled with that charged that such testimony was necessary to prove the crime charged.
    2. Criminal law <®=>365(3), 695(2) — Testimony as to other offenses held not irrelevant and hot subject to general objection.
    In prosecution for unlawfully carrying a pistol, in which defendant claimed to have been on his own .premises at time, but there was evidence that the premises had been placed in the possession of his wife by divorce decree prohibiting him from interfering with their management, and that defendant went on the premises and pointed a pistol at his wife, and that the pistol was taken from him by his son-in-law, admission of testimony that defendant then attempted to use a knife and an ax, which were also taken from him, as against objection that it was irrelevant and prejudicial, helé not error, where it was material to rebut theory that defendant was on premises to see his children, and not to interfere with the management of the property.
    3. Criminal law @=>695(6) — Objection that testimony was irrelevant and prejudicial held insufficient where admissible in part.
    Objection that evidence was irrelevant and prejudicial held insufficient, where it was admissible in' part, since in such case objection should point out the part of the testimony deemed objectionable.
    4. Weapons @=>9 — Community property, placed in wife’s possession by divorce decree, not husband’s own premises within statute exempting him from prosecution for carrying pistol while thereon.
    Where divorce decree placed community property in the wife’s possession and prohibited husband from interfering with her management thereof, the premises were not his own premises within Pen. Code 1911, art. 476, exempting him from prosecution for carrying a pistol while on own premises.
    Appeal from Harris County Court at Law; John W. Lewis, Judge.
    Antonio Solosky was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    J. P. Rogers, of Houston, and J. M. Gibson, of Richmond, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for unlawfully carrying a pistol; punishment fixed at confinement in the county jail for 60 days.

The defense urged is that it was on his own premises. Appellant and his wife had been separated. There were minor children, •and in the divorce decree the wife was awarded the custody of the children and possession of the residence, which was community property. The decree contained a provision that the wife should have full, complete,' and exclusive control of the premises and the rents and revenues therefrom for the purpose of supporting, maintaining and educating the children during their minority. In awarding the custody of the children to the wife, it is stated in the decree that he shall have the right to see and visit them so long as he does not interfere with the management of the children or the property.

The appellant appeared upon the porch of the house occupied by his wife. Hearing some one, she opened the door, whereupon appellant immediately drew a pistol and pointed it at her. Her son-in-law appeared, and took it away from him; appellant then drew a knife,and,attempted to open it. which was also wrested from him by the son-in-law. Appellant then went into the yard and picked up an ax with which he attempted to strike his wife, but the son-in-law interfered.

In a bill of exceptions the proof of the acts' of the appellant other than the possession of the pistol were objected to upon the ground that they were irrelevant and prejudicial. At least a part of the acts of the appellant were so intermingled with those that it was necessary for the state to prove, in order to make out its case, that the development of the essential facts would have been difficult, if not impossible, without repealing the acts of the appellant in the use of the pistol. In other words, they were clearly within the exception to the rule excluding other offenses which permits |the proof of other acts of the accused which are a part of the res gestee, although such acts may constitute a different offense from that charged in the indictment. Underhill on Crim. Evidence, § 88; Wharton’s Crim. Ev. vol, 1, p. 228, and notes. The admissibility of that part of the transaction relating to the attempted use of the knife and ax is not so clear as that which reveals his attempted use of the pistol. Assuming that the evidence of those matters should have been excluded, upon an objection properly made, we think the matter is not so presented as to authorize review. The objection urged was that the testimony was irrelevant and prejudicial. This objection has been often held too general except as against evidence which was obviously admissible for no purpose. McGrath v. State, 35 Tex. Cr. R. 413, 34 S. W. 127, 941; Hamblin v. State, 41 Tex. Cr. R. 139, 50 S. W. 1019, 51 S. W. 1111; Ball v. State, 44 Tex. Cr. R. 186, 69 S. W. 512; Carter v. State, 40 Tex. Cr. R. 229, 47 S. W. 979, 49 S. W. 74, 619; Barfield v. State, 41 Tex. Cr. R. 20, 51 S.W. 908; Neely v. State, 56 S. W. 625.

The bill of exceptions are inadequate to present the exclusion of a part of the testimony adverted to for the additional reason that the objection was addressed to the proof of all the acts of the appellant, some of which were clearly admissible. Under such circumstances the objection made should point out the part of the testimony which is deemed objectionable. When the attack is against the whole, the court is not in error in overruling the objection where he would have been authorized to exclude only a part. See Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858, wherein the reason for the rule is stated. Other illustrations of this application will be found collated in Branch’s Ann. Texas Penal Code, § 211. Even if the questionable part of the testimony had been singled out, the objection that it was immaterial would not have required its exclusion for the reason that the objection was too general, and for the further reason that the testimony was material as rebutting the theory arising from the evidence that the appellant was on the premises to see his children, and not to interfere with their management or that of the property. There is no intent to indicate that, in the opinion of the court, his right on the premises was such as would exempt him from prosecution under article 476 of the Penal Code. The place at which he exhibited the pistol was, in our judgment, not his own premises within the meaning of the statute. The judgment of the court, for the time being, divested him of the right of occupancy and placed it in another, giving him permission only to visit it for a specific purpose. In our opinion, his rights were not unlike those of the owner of the property which is in possession of a tenant, and such landlord is not exempt from prosecution under the statute named. See Zallner v. State, 15 Tex. App. 24; Elliott v. State, 39 Tex. Cr. R. 244, 45 S. W. 711; Hooks v. State, 25 Tex. App.' 602, 8 S. W. 803; Clark v. State, 49 Ark. 174, 4 S. W. 658; Jones v. State, 55 Ark. 186, 17 S. W. 719. The facts in the case of Whitesides v. State, 42 Tex. Cr. R. 153, 58 S. W. 1017, would call for the application of the same legal principles as those in the instant case. Prom that case we quote:

“The proof showed that the locus in quo where the alleged offense was committed was in a certain pasture; that the pasture was not rented to appellant’s father, but he merely had a permissive use of the pasture with others; that appellant was seen with the pistol in said pasture at night.”

The court held that the permissive use appertaining to the accused did not exempt him from prosecution under the statute.

We find no error in the record authorizing or requiring a reversal of the judgment, and it is therefore affirmed. 
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