The judgment in this case was affirmed at Tyler, and is before us now on motion for rehearing. The original opinion, we think, sufficiently states the case.
Appellant now claims that his contention was misunderstood, and makes this excerpt from the closing of the opinion, as the basis of his contention: "Appellant cannot complain that the State sought to obtain a conviction with the less punishment." That was rather an incidental remark at the close of the opinion. We understood then, as we understand now, that appellant's contention was that there was a variance between the evidence and the allegations, and the basis of this contention is, that he should have been charged with carrying a pistol at a public assembly, or in a place where people had assembled, etc., and that *Page 316 he was convicted under an ordinary indictment charging him with unlawfully carrying on and about his person a pistol, and the original opinion so states the proposition. Appellant's contention may be stated in another form in this manner: That inasmuch as the State showed that he had the pistol in the yard, or somewhere in the neighborhood of the house at the time people were assembled in the house, that, therefore, he should have been charged under the statute with reference to carrying a pistol into such house, etc., where people were assembled; and that inasmuch as he was charged under the other statute, simply for carrying a pistol on and about his person, that he was entitled to an acquittal because the facts showed, in his judgment, that he was at a place where people were assembled. We do not believe this contention is correct. The fact that the State charged under one statute for carrying a pistol, does not necessarily prevent a conviction, because appellant may have had the pistol at a public assembly, under the doctrine of carving. Where the State sought to punish for simply carrying the pistol, and where the punishment may have been much greater for carrying it at a house where people were assembled, would not afford a ground, in our judgment, for setting aside the conviction. The court was not finessing on the exact amount of punishment that might be prescribed under either statute, in the original opinion, but was simply holding that where the State charged carrying a pistol, appellant could be convicted under such charge, although he may have carried it near or at a place where people had assembled; even if the State could have punished him under a proper pleading for having carried the pistol to the public assembly.
We see no legal reason why this motion should be granted, and it is, therefore, overruled.
Overruled.