Banks v. State , 52 Tex. Crim. 167 ( 1907 )

This is a conviction for carrying a pistol, the punishment being assessed at a fine of $100.

Appellant filed a motion in arrest of judgment on the following grounds: That the case was improperly transferred from the District Court to the county court. The order complained of is as follows: "It is ordered by the District Court of Fort Bend County that the case of the State v. Tom Banks, wherein the defendant stands charged with illegally carrying a pistol, that the same be transferred according to law to the ______ court of ______ county for trial by reason of the want of jurisdiction of the District Court." Questions of this character cannot be presented in motion in arrest of judgment, but must be raised in limine; that is, prior to the time appellant announces ready for trial, otherwise it comes too late. See Coker v. State, 7 Texas Crim. App., 83; Freedlander v. State, 7 Texas Crim. App., 204, and Bonner v. State, 38 Tex.Crim. Rep..

The facts in this case show that defendant was at the house of Dave Botts on the night in question where a crowd had assembled and were engaged in dancing, and while there an altercation sprang up, and in the difficulty appellant pulled a pistol and fired upon one of the parties. Appellant, in his evidence, claims that he had gone over to his father's house and got the pistol and started home with it, and that he met on the way Dave Botts, and went to his house, where there was a dance. The court, in his charge to the jury, told them that defendant had a right to go and get the pistol and carry it to his home, and that if he stopped on the route and diverted his course to engage in pleasure, then he would be guilty if the jury so believed. Appellant complains of the failure of the court to charge that if the jury believed that the defendant carried the pistol as alleged, but for the purpose alone of carrying the same home, then you will find the defendant not guilty. The court charged this, but added: "But if he stopped by the wayside and engaged in pleasure, then the same would be no defense." This, as we understand it, is the law of this State.

Finding no error in the record, the judgment is affirmed.

Affirmed.

Henderson, Judge, absent.