
    GUTHRIE v. STATE.
    (No. 3089.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    Rehearing Denied May 13, 1914.)
    1. Weapons (§ 13) — Right to Caeey — Recovery of Property.
    Where a husband sold his com crop and thereafter separated from his wife, who remained on the farm and resisted efforts of the purchaser to gather the crop, accused, hired by the purchaser to gather the crop, both knowing of the wife’s claim and her intention to resist, is not authorized to carry a pistol.
    [Ed. Note. — Eor other cases, see Weapons, Cent. Dig. §§ 16, 17; Dec. Dig. § 13.]
    2. Weapons (§ -13) — Right to Caeky — Consent of Another.
    No one can give to another permission to carry arms on his premises in violation of law.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 16,17; Dec. Dig. § 13.]
    3.Weapons (§ 9) — Right to Carry — “Place of Business.”
    A farm to which accused goes to forcibly take some corn claimed by his employer is not the “place of business” of accused within the statute so as to entitle him to carry a pistol.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 8; Dec. Dig. § 9.
    
    For other definitions, see Words and Phrases, vol. 6, pp. 5390-5392.]
    Appeal from Red River County Court; George Morrison, Judge.
    Joe Guthrie was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Chambers & Black, of Clarksville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100.

The facts in this case would, show J. L. Upchurch was a married man, and in the year 1913 rented land from Dr. Dinwiddie and raised a crop thereon; that in the latter part of October he sold his ungathered corn crop to Turner Devinney in payment of a debt due for groceries, and in a few days thereafter, and before Mr. Devinney had gotten the corn, he and his wife parted, and he had left the place, his wife continuing to live in the house on the rented premises. It appears that on the morning of November 1st Mr. Devinney employed Bob Swope and W. A. Huddleston to gather the corn, and they went in the field to do so. Mrs. Up-church went to the field and vigorously protested, and caused these two men to throw the corn they had gathered out of the wagon and leave the premises. They reported the facts to Turner Devinney, and also told appellant about the circumstances. Roy Elmore testified that he, appellant, and C. R. Fogg met Swop and Huddleston, and they told, appellant about being run out of the cornfield by Mrs. Upchurch, when appellant replied “that he would gather the corn if Devinney would pay for it”; that, when Swope and Huddleston told appellant he had better let it alone as he might get killed, appellant said “he was ready to die, and would gather it for Devinney if he wanted him to.” Devinney then told appellant to get some hands and gather the Upchurch corn. O. R. Fogg and Roy Elmore went with him. It further appears from the record that Mr. Devinney told appellant “that Mrs. Upchurch or her brother-in-law might prevent him from gathering the corn, or might hurt him, and he [appellant] had better 'carry a gun for protection.” Appellant armed himself with a pistol and went to. the cornfield to gather the corn. Appellant admits he carried the pistol to the Upchurch cornfield, but says Mr. Devinney told him it was not against the law for him to do so.

Appellant, Elmore, and Fogg all testify that, when they got to the field and commenced to gather the corn, Mrs. Upchurch appeared on the scene, armed with a pistol, ordered them to desist, and throw out what they had in the wagon, and, when they refused, she was very abusive, used obscene language, and drew her pistol on appellant, when appellant drew his pistol and fired it, as he says, in the ground. After Mrs. Up-church had further cursed and abused them, appellant said “he had wasted the first shot, but he had no more to waste, and that the one he had shot was all he had to throw away.” The woman apparently was frightened and left, going baclr to the house. Thus it is seen that Devinney and appellant both knew that Mrs. Upchurch was claiming the corn before appellant consented and agreed to go and gather it. It may be that the title of Devinney to the corn was perfect, having bought it from the husband of Mrs. Up-church; but, as they knew that after the separation Mrs. Upchurch was claiming the corn, the law did not authorize them, or either of them, to arm themselves with a pistol and go and take the corn by force. Such proceedings as this leads to too many unfortunate homicides for the law to sanction such proceedings. If Mrs. Upchurch had not become frightened when appellant fired his pistol, and had fired back at appellant, there would have been more than likely a dead man or woman in the field that day.

After Upchurch had separated from his -wife and left her there on the rented premises, no man had a right to enter thereon, without her consent, and by force take property therefrom to which she was setting up a claim. If Mr. Devinney in fact was the legal owner of the corn, after he had been informed by Swope and Huddleston that she claimed the corn and had driven them from the field, he had no legal right to send an' armed force in the field and take the corn by force. In this day and time no man can take the law into his own hands; but, if his property is wrongfully detained by another, the law furnishes him ample remedies. He could have sworn out a sequestration writ, 'and the officers of the law would have taken charge of the corn, and the right to the corn adjudicated. The contention of appellant that, as Mr. Devinney had bought the corn from the husband, he as the employs of Devinney, had a right to arm himself, enter the premises by force, and take the corn, regardless of the protests of the . wife, cannot be sustained.

The charge of the court was more favorable to appellant than he was entitled to in law, and, as there was no exception reserved to the introduction of testimony, the judgment is affirmed. The contention of appellant that, if the testimony brought him . within any of the exemptions named in the statute, the verdict should not be sustained is sound in law; but the facts in this case do not bring him within any of the exemptions. He was not carrying the pistol on his premises nor in his place of business. The premises were the premises of Mr. and Mrs. Upchurch, and, if Mr. Upchurch had given him permission to go on the premises armed with a pistol, this would not authorize him in law to do so. No one can give to another permission to carry arms on This premises in violation of law. This wag not his place of business, for he was employed by Mr. Devin-ney at another and different place, and he Willingly undertook to engage in this seeming dangerous enterprise — go on the premises of another and forcibly take property therefrom that his employer was claiming, and armed himself with a pistol so as to be able to forcibly take the corn.

If the Upchurch farm can be held to be the place of business of appellant, then every person who has some slight business with his neighbor, or in any portion of the town, or in another part of the precinct of his residence, can claim that, while attending to this temporary matter, he had the right to carry a pistol with him and keep it on him while transacting this business matter, and such construction would nullify the pistol statute. The eases of Ball v. State, 25 S. W. 627, Ross v. State, 28 S. W. 199, Sanderson v. State, 50 S. W. 348, Page v. State, 25 S. W. 774, Gibbs v. State, 156 S. W. 687, Craig v. State, 60 Tex. Cr. R. 195, 131 S. W. 563, and other eases cited by appellant, do not sustain his contention. In the Craig Case the appellant had the pistol in the room where he slept and kept his clothes; in the Page Case he had the pistol in the bank where he was regularly employed; in the Ross and Ball Cases the defendant was residing on the premises where he had the pistol, making it his home for the time being; in the Gibbs Case the evidence showed he had the pistol on land he had rented and had control of. The facts in this case come more clearly within the rule announced in McCauley v. State, 45 S. W. 576. In that case McCauley had left his home and gone to his employer’s house to assist in killing a hog. This “temporary business” did not exempt, even though he had the legal right to be on the premises where he had the pistol, and was engaged in a lawful business.

The judgment is affirmed.  