
    MENDEZ v. STATE.
    (No. 7138.)
    (Court of Criminal Appeals of Texas.
    April 25, 1923.)
    1. Weapons &wkey;17(5) — Whether defendant, accused bf unlawfully .carrying a pistol, was on own premises when he fired shot held for Jury. .
    In the prosecution of a defendant for unlawfully carrying on and about his person a pistol, in which there was testimony on the part of the defense that the defendant fired his pistol New Year’s Eve to celebrate the coming of the new year while standing on “his own sidewalk,” and that such sidewalk constituted a path on which people walked, and other testimony on the part of the state that the defendant was more than 100 feet from his house when he fired the shot, the question of whether the defendant was on his own premises at the time was a question for the jury.
    2. Criminal law &wkey;655(l) — Statement of court to defendant’s counsel in presence" of jury held improper.
    In the prosecution of a defendant for unlawfully carrying on and about his person a pistol, involving the issue of whether the defendant was on his own premises when he fired the pistol to celebrate the coming of the new year, and in which there was testimony that the defendant was standing on his sidewalk at the time when he fired1 the shot, the action of the court in stating to defendant’s counsel in the presence and hearing of the jury that the sidewalk in front of a man’s home is not a part of his premises held, improper.
    Appeal from Tarrant County Court at Law; P. W. Seward, Judge.
    Aurelio Mendez was convicted of unlawfully carrying on and about his person a pistol, and he appeals.
    Reversed and remanded.
    Mays & Mays ánd P. M. Chaney, all of Port Worth, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court at law of Tarrant county of unlawfully carrying on and ábout his person a pistol, and his punishment fixed at 30 days’ confinement in the county jail.

It was New Year’s Eve on Valley street in the patriotic city' of Port Worth. As the whistles of the great packing plant, railroad yards, and industrial concerns began shrieking notice of the bir.th of the new year at midnight, this appellant, although a stranger in a strange land, stepped out on what is called in the testimony the “sidewalk” in front of his humble dwelling and fired a pistol twice in the air. Officers came. He was arrested, charged with unlawfully carrying a pistol, and this conviction followed his trial. He and his witnesses testified that he was not off “his own sidewalk,” and that his only purpose was to join the general celebration of the birth of 1922. His testimony has a note of plaintive remonstrance:

“I was shooting that pistol, because I didn’t have anything else to shoot. * * * I held my gun like that, and fired in the air when I shot. I did not have that gun for any other purpose, except to celebrate. That was all I had to celebrate with, and I was doing the best I could under the circumstances.”

There was no cement sidewalk in front of appellant’s house, only a path upon which people walked. It is not even suggested by the record that it was city property.

The word “sidewalk” has no settled legal definition. It may or may not be a part of the street. If a mere path through one’s premises be used for sidewalk purposes, we do not quite see how it could be held that the owner of such premises having a pistol on-such path, under the facts as contended for by appellant in this case, could be held guilty of the offense charged. True, the officers contended that appellant was more than 109 feet from his house. This then became a fact issue, and as applicable thereto appellant asked the learned trial judge to charge the jury that if he did not have the pistol at any other place than on his own “sidewalk” he would not be guilty. When no more facts are shown as to the character of the sidewalk referred to than appear in evidence here, the issue should have been submitted as contended for by appellant. In Ball v. State (Tex. Cr. App.) 25 S. W. 627, it was shown that a public road ran through the premises which the accused claimed as his home. He had a pistol on that road on said premises. This court held it no violation of the law. The holding was approved in Ross v. State (Tex. Cr. App.) 28 S. W. 199.

The learned trial judge should not have stated in the presence and hearing of the jury, as shown by .appellant’s bills of exception, that the sidewalk in front of a man’s home was not part of his premises. While it is made to appear that this statement was made to appellant’s counsel, it was in the hearing and presence of the jury, and trial courts should never lose sight of the weight given to their utterances by the jurors.

For the errors mentioned, the judgment will be reversed, and the cause remanded. 
      —.l.-nr other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and indexes
     