
    ELSON v. STATE.
    (No. 7762.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1923.)
    1. Criminal law &wkey;>365(I) — Evidence that defendant was under influence of liquor when arrested, and protested against arrest, held admissible in prosecution for carrying pistol.
    In a prosecution for unlawfully carrying a pistol, which defendant testified he was carrying home from where he claimed to have received it in part payment of a debt, evidence that he had a bottle of whisky when arrested, and appeared to be under the influence of liquor, and that he protested against his arrest, held admissible as res gestee, and as bearing on the truth of defendant’s testimony.
    2. Weapons t&wkey;11 (i/2) — Conviction of unlawful^ carrying pistol not sustained.
    One testifying that, when arrested, he was carrying to his home a pistol received in part payment of a debt, held not guilty of unlawfully carrying it, in the absence of evidence of any substantial deflection from his route homeward or any testimony controverting his contention.
    Appeal from Kaufman County Court; W. P. Williams, Judge.
    Artie Elson was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed and remanded.
    Wbods & Morrow, of Kaufman, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for unlawfully carrying a pistol; punishment fixed at a fine of $100 and confinement in the county jail for a period of 90 days.

Appellant was arrested with a pistol in his possession. He testified that he went from his place of abode to a point several miles away in order to fill an appointment with a man named Davis. His purpose was to collect some money from Davis, who disclaimed having any money, and tendered the 'pistol in question as part payment, which appellant accepted. Appellant was an unmarried man about 27 years of age. His work required him to live in a tent on the Trinity river, but he called his mother’s house, about four miles distant, his home. He went from his tent to a point about four miles distant to meet Davis, and was about three miles on his return when he was arrested. Davis corroborated him with reference to delivering the pistol to him. Other witnesses corroborated the appellant to the extent of having met him on his journey to the point where he claimed to have received the pistol from Davis.

There was evidence that appellant had a small bottle of whisky, and that he appeared to be under the influence of liquor. This was controverted, and there are several bills of exceptions in the record on this subject. Apparently this evidence was part of the res gestas, and was admissible as bearing upon the truth of appellant’s testimony. Appellant also protested against his arrest. This, we think, would come under the same category.

We confess our inability to discover anything in the record which controverts the theory and testimony of the appellant and his witnesses to the effect that he was in lawful' possession of the pistol in carrying it to his home.' We have perceived nothing in the record which showed any substantial deflection from his route to his home. In the absence of some testimony meeting this issue, the evidence is regarded insufficient to support the conviction. '

The judgment is reversed, ,and the cause remanded. 
      <§^>For other eases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes
     