
    WARING v. STATE.
    (No. 4374.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Weapons <&wkey;17(3) — Evidence—Relevancy.
    In a prosecution for carrying a pistol, where the state’s theory was that defendant had the pistol when going to call on his wife, from whom he was living apart, testimony that defendant was charged with having willfully deserted his wife, and details as to why he had deserted her, and also facts showing that he had done so, were improperly admitted;. they being irrelevant, the only' admissible testimony being as to the fact that the parties were living apart.
    [Ed. Note. — Eor other cases, see Weapons, Cent. Dig. §§ 27, 28.]
    Appeal from Harris County Court, at Daw; Murray B. Jones, Judge.
    Graham Waring was convicted of carrying a pistol, and he appeals.
    Judgment reversed, and cause remanded.
    John H. Crooker, Or. Dist. Atty., and E. T. Branch, both of Houston, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of carrying a pistol in violation of the law, his punishment being! assessed at a fine of $100.

The facts show, substantially, that he and his wife had separated by an agreement, and that he was paying her so much money a month; that on the particular occasion, before going to the residence of his wife, he called her over the telephone and obtained her permission to call. After supper he did call, and the state’s theory, supported by one witness, is that appellant had the pistol at the reasidence of his wife. They were living separately, she in a house occupied by herself and two children, and he in another place in a different part of the city of Houston. He had' been furnishing her money, after theii- agreement to separate, for several months, and- until some time in September. Along about November he began furnishing her money again, and his testimony shows he was dividing his salary between himself and his wife, who had the two children, one two years of age and the other about four months old. Appellant denied having the pistol at the time and place, and supported this by other evidence. The issue was squarely drawn on the facts.

It seems that some time after September appellant was charged with willfully deserting his wife under the statute which defines it to be a criminal offense to desert and fail to support a wife and children. The state introduced the fact that he was under such criminal accusation and quite a lot of testimony in connection with this matter. In regard to this question, the facts’ assumed a wide phase. We are of opinion this testimony was not admissible except the fact they were living apart. It had no bearing upon or relation to the fact that he did or did not carry a pistol. The fact that he was living apart from his wife and children had some bearing upon the case, for it brought in review the question as to whether or not he had a right to have a pistol where his -wife resided; they being undivorced. But the details showing his alleged desertion of his wife could not have any relation to or bearing upon the fact that he had a pistol at her house. If he had it there, and he was living to himself in a home and she in her home to herself, it might not justify him in carrying a pistol to her place of residence under the circumstances. There was also divorce or threatened divorce proceedings looking to a final separation between them. There are several bills of exception with reference to the question of desertion of his wife brought into the case; not only the fact of the pendency of the prosecution, but much of the details and matters of that sort were admitted, and why he had deserted his wife, and also facts showing that he had done so. The opinion will not deal with the details of these different bills of exception, but will dispose of the case on the general statement that those matters had no place in the prosecution and ought not to have been introduced. The issue was sharply drawn between the state and defendant as to whether he had the pistol. One witness testifies that he did; other witnesses testified that he did not; and defendant swore positively that he not only did not have a pistol, but did not own one. With this general disposition of the case, we order a reversal of the judgment of conviction, and will say that the matters with reference to the prosecution for a desertion should not be permitted to enter into the case upon another trial. If appellant had the pistol, he had it; if he did not have it, he did not have it; and what light the fact that he was being prosecuted for deserting his wife had upon this is not readily understood. It was clearly detrimental and injurious.

The judgment is reversed, and the cause remanded.  