
    REES v. STATE.
    (No. 8395.)
    (Court of Criminal Appeals of Texas.
    June 18, 1924.)
    1. Weapons &wkey;>i!3 — Facts hold not to show commission of offense of unlawfully carrying pistol.
    Accused was not guilty of unlawfully carrying on or about his person a pistol placed under the seat of his automobile without his knowledge and discovered by him by accident when he reached for a tool to defend himself against the attack, of his guest, nor in using it as a bludgeon in the affray.
    2. Criminal lav/ <&wkey;4l7(9) — Witnesses <&wkey;388 (2) — Testimony held not admissible as original evidencs, nor as impeachment in absence of laying of predicate.
    In a prosecution for unlawfully carrying a pistol, based on the presence of the pistol under the seat of accused’s ear, where defense was absence of knowledge of presence of pistol and accidental discovery of it, testimony of witness that in accused’s absence accused’s brother stated the pistol belopged to accused held not admissible as original evidence, nor in the absence of the laying of a proper predicate for impeachment purp6ses.
    Appeal from Bee County Court; Felix J. Hart, Judge.
    Sam Rees was convicted of unlawfully carrying a pistol, and be appeals.
    Reversed and remanded.
    B. D. Tarlton, of Beeville, and Black & Morrow, of Austin, 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.

Vance Smith and others were riding with the appellant, Sam Rees, in his automobile. Smith was intoxicated, and made an attack with a knife upon the appellant, who struck him on the head with a pistol. The only time the pistol was seen by the witnesses who were in the car was at the time the blows were struck. The pistol was immediately thereafter surrendered. According to his testimony, when attacked by Smith, appellant reached under the seat of the car for the pliers, and his hand touched the pistol. He had no knowledge that it was in the car. The brother of the appellant had used the car in going to and returning from a town in one -of the nearby counties, and, according to his testimony, had left his pistol under the seat of the ear.

The trial was had before a jury. The court’s charge failed to mention the defensive theory arising from appellant’s testimony, and by exception to the charge, and by special charges requested and refused, that omission is properly brought before this court for review. If the pistol had been placed in the car without the knowledgé of the appellant, and his discovery was by accident as he was reaching for the pliers to defend himself against the attack of Smith, he was not guilty of carrying the pistol on or about his person. Miles v. State, 52 Tex. Cr. R. 561, 108 S. W. 378, 124 Am. St. Rep. 1106. Nor was he guilty of that offens'e if, on finding the pistol under the circumstances detailed, he used it as a bludgeon in the affray with Smith. To this effect the precedents are numerous. Many of them are collated in Pyka v. State, 80 Tex. Cr. R. 644, 192 S. W. 1066. To them we refer for the reasons supporting them.

A witness was permitted to testify that in the absence of the appellant one of his brothers said that the pistol in question belonged to thá appellant. This was not admissible as original evidence. If, after proper predicate, it had been introduced for impeachment, the rule would be different.

ETom what has been s£(id it follows that the judgment must be reversed and the cause remanded.' It is so ordered. 
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