Burns v. State

38 S.W. 204, 36 Tex. Crim. 601

• Court: Court of Criminal Appeals of Texas
• Decided: December 6, 1896
• Docket: No. 1405.
• Status: Published

Opinion

HURT, Presiding Judge.

This conviction was obtained under Art. 169, of the Penal Code of 1895, which provides that: “If any person, other than a peace officer, shall carry any gun, pistol, bowie knife, or other dangerous weapon, concealed or unconcealed, on any day of election, during the hours the polls are open, within the distance of one-half mile of any polling or voting place, he shall be punished by a fine of not less than one hundred nor more than five hundred dollars; and in addition thereto may be imprisoned in the county jail for a period not exceeding one month.” Appellant concedes that he is guilty of violating this article, but contends that, as he went with the pistol to an election precinct on the day of an election, where a portion of the people of the State were collected to vote at said election, and as the punishment for this offense is less than for that under Article 169, he should have been prosecuted for the offense as defined in Article 840, and not the offense as defined by Article 169. From the statement of facts it appears that the election was held in the court house, situated on the square in the city of Tyler; that appellant went, with the pistol, within a few feet of where the election was being held, and where the people were collected to vote at said election. Appellant obtained the pistol on the east side of the square in the city of Tyler, and walked over to the polls. The polls were then open. Before he entered the court house yard with the pistol, the offense defined by Article 169 was complete in every particular. We cannot understand upon what principle the commission of the offense defined in Article 340 would relieve appellant from the penalty affixed to an offense completed before the latter offense was committed. This was a separate and distinct offense. If the offense defined by Article 169 was complete, the commission of the offense defined in Article 340 could not relieve the party from the guilt of the offense already committed. The judgment is affirmed.

Affirmed.