Upton v. State , 33 Tex. Crim. 231 ( 1894 )

Defendant sought to avoid the effect of the State's case by proving the sale of his half-interest in the pistol carried by him to one Ragsdale, and that at the time he was seen with it he was carrying it to the purchaser, and never had it in his possession afterwards. During this trip he was off his mother's premises, where he lived. To meet this evidence, Hyatt was recalled for the State, and testified that defendant had the same pistol subsequently on his mother's premises. This was clearly admissible. It bore directly and pertinently upon the honesty of defense, and was an attack upon the sale and delivery of the pistol. Avoiding the sale, the defendant carried the pistol off his premises. Whether the sale and delivery were bona fide was a fact for the jury.

It was not necessary that the evidence introduced should have been in rebuttal. If it was necessary to a due administration of justice, it was admissible at any time under legislative enactment. Code Crim. Proc., art. 661.

It was not necessary to the validity of the complaint that the name of the affiant be set out in the body of the complaint. He signed and swore to it. Code Crim. Proc., art. 236.

The judgment is affirmed.

Affirmed. Judges all present and concurring.