The record having been perfected, the dismissal heretofore entered is set aside.
The prosecution is for unlawfully carrying a pistol. A pistol was taken from the possession of the appellant by officers. The State's witness describing the locality, says: "That the appellant was in quarters at Mayo. He was there in quarters but not in any house, but near a house he claimed as his, which was the nearest house in forty or fifty feet from where the pistol was taken from him." The appellant claimed that he heard a noise behind his house and took his pistol in his hand and ran out the back door some fifty feet when he met the officers and was arrested; that the arrest was made at his house which he rented from the Mill Company at Mayo. There was no fence around his yard and no public road near it.
We think the evidence is insufficient to show that the appellant was unlawfully carrying a pistol. He had a right to one upon his own premises. He claims to have been upon his own premises, and this the State's testimony does not controvert but tends to corroborate. See Fuller v. State, 58 Tex. Crim. 126; Mireles v. State, 80 Tex.Crim. Rep., 192 S.W. Rep., 241; McQueen v. State, 76 Tex.Crim. Rep., 177 S.W. Rep., 91; Harper v. State, 76 Tex.Crim. Rep., 174 S.W. Rep., 343; Gibbs v. State, 70 Tex.Crim. Rep..
The judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.