Smith v. State

10 Tex. Ct. App. 420

• Court: Court of Appeals of Texas
• Decided: July 1, 1881
• Status: Published

Opinion

Hurt, J.

The appellant was convicted of carrying a pistol on or about his person. Does the evidence support the verdict, is the only question presented.

There was but one witness, and his testimony was substantially as follows: u I requested defendant to go with me to a burial, a short distance off. He went with me to the grave-yard, which was a public place. While at the grave-yard, I saw a belt around the waist of defendant. I saw, underneath the coat of defendant, what I took to be the handle of a pistol. It did not look like the handle of a knife, but like the handle of a pistol. Would not swear that what I saw was a pistol.”

This is very unsatisfactory evidence; there is no description of the thing which he saw and which looked like the handle of a pistol. We are not informed whether there was a scabbard or not. If so, was it for a knife or pistol? What was its size and shape? Was this supposed handle in the scabbard? There is no fact given upon which this witness’ opinion was based. To justify a conviction there should be clearness and certainty in the proof,—such certainty as would amount to that which is morally certain.

We cannot give our consent to a conviction supported by such evidence as the above. The judgment is therefore reversed, and the cause remanded for a new trial.

Reversed and remanded.