That one may carry a pistol from a place where same is legitimately had, to another like place for some legitimate purpose, seems uniformly held; but this does not mean that such person may so carry such weapon idly, or merely for the sake of carrying it, or habitually, or for some unlawful purpose. Cassi v. State, 86 Tex.Crim. Rep.; Moore v. State, 86 Tex. Crim. 502. We did not intend any expression in our judgment of affirmance herein, to be understood otherwise. Appellant defended in this case on the theory that she did not carry across the public road in front of her house, the pistol with which the alleged assault, if any, was made; but that she took it no further than to her gate where she left it while she went across the road and retuned. The state witness Howard testified that appellant took the pistol from her pocket and fired it while in said public road, and this gave rise to the issue chiefly discussed in the opinion heretofore, as to whether she would be guilty in the event she did so carry said pistol on and across said road.
We have carefully considered the able motion for rehearing, but are not satisfied that the Ball case, referred to in our former opinion, or the Ross case, 28 S.W. 199, would justify us in holding that one might legally carry a pistol on a state highway under facts such as appear in this case. Nothing in either of the cases referred to apply to the character of case or the kind of road which appears here. The road referred to in said cases might easily have been a second or third class or even a neighborhood road as defined by our statute. If the facts in this case justified the jury in finding that appellant carried the pistol in question to a point in the public road and that she there shot same at the alleged injured party, then in our opinion they were warranted in the verdict of guilty. Appellant herself swore: "I had no business to take the pistol with me across the road." "Before I went after the cows I laid the pistol inside the yard." Granting the right then of one under circumstances showing some need or lawful reason to carry a pistol from one *Page 361 premise to another, we are forced to hold a discussion of such right merely academic here for the reason that appellant not only did not furnish proof of some lawful purpose in such carriage but denies that she did carry said pistol from her yard across the road to the pasture. To be sure we recognize the rule that if evidence other than that of the accused raises or supports the proposition that she lawfully carried the pistol from one premise to another, this would be enough to properly raise the issue, but there is no such other evidence in this case.
One can not idly or without lawful purpose carry a pistol from premise to premise across the property of others or of the public; and such carriage when proven is deemed unlawful, and the burden of proving that such carriage was lawful and within some of the exemptions, is upon the accused as appears in Bridgers v. State, 8 Tex.Crim. App. 145; Stilly v. State, 27 Tex.Crim. App. 445; Williams v. State, 74 Tex.Crim. Rep.; Blair v. State, 26 Tex.Crim. App. 387; Hunter v. State,73 Tex. Crim. 459. In the well considered case of Moore v. State, 86 Tex.Crim. Rep., it seems held that when the facts are presented on which a defensive issue depends and the jury resolves same against the accused, if sufficient to support the finding, this would be conclusive. The reasoning of the court in that case seems applicable here.
Being unable to agree with appellant's contention, the motion for rehearing is overruled.
Overruled.