Briscoe v. State

24 S.W. 95, 32 Tex. Crim. 411, 1893 Tex. Crim. App. LEXIS 297

Opinion

DAVIDSON, Judge.

Appellant was convicted of carrying a pistol, in contravention of the statute.

The officer making the arrest of defendant was permitted to testify, over objection, that, shortly before said arrest defendant asked witness, “ if a man had the right to keep another’s property?” Upon receiving an answer in the negative, defendant stated, “ that one Clarence had his, defendant’s, drum, and that he, witness, would have him, defendant, to arrest before night, as he would do some dirt, or get his drum. That defendant then walked away, and was gone some minutes. When he returned to where witness was he found a pistol on defendant.” The grounds of objection were, that it was irrelevant, not res gestae, and was calculated to injure defendant. The objections are not well taken, and were admissible to rebut the claim of defendant that he was returning the pistol to its owner, for whom he had repaired it. Defendant denied having the pistol at the time it was taken from him. He was also found with a bottle of whisky.

The evidence warranted the conviction. The judgment is affirmed.

Affirmed.

Judges all present and concurring.