Appellant was convicted under Art. 1151 of the Penal Code, the indictment charging that while unlawfully carrying on and about her person a pistol she unlawfully and wilfully made an assault upon Martha Weiland, penalty a fine of $75.00.
Under this indictment it devolved upon the state to show: (1) That appellant unlawfully assaulted the prosecuting witness with a pistol, and (2) that the pistol was then and there being unlawfully carried by appellant. Art. 1151, P. C.; Reneau v. State, 291 S.W. 899. The evidence we deem sufficient upon the first of these issues and that upon the second issue was substantially as follows: A public road ran through the homestead of appellant; the house, barn and cow lot were on one side of this road and a cow pasture in which the milch cows were kept was immediately opposite on the other side of the road, there being about one hundred acres on one side of the road and about ten acres on the other side. The appellant had a pistol on the date of the offense in the public road between her residence and the cow pasture and on said occasion, the state's witness testified, fired two shots towards the prosecuting witness who was passing in an automobile. The testimony for appellant shows that she had been across the road after the cows and returning fired a shot at a rabbit. It further shows the impossibility of appellant's using her homestead without using the public road, the title to which road in the public it *Page 357 seems amounted only to an easement, the fee remaining in the appellant's husband. This case turns upon the sufficiency of the above evidence to show that appellant was unlawfully carrying the pistol when the alleged assault was made. Judge Hurt summarily disposes of a similar contention in the case of Ball v. State, 25 S.W. 627, in the following language: "Appellant carried the pistol on a public road. The road ran through the premises of Mr. Stanford. That point of the road at which appellant carried the pistol was situated on Stanford's premises — his homestead. Appellant lived with Stanford, he had no other home. Did he violate the statute prohibiting the carrying of a pistol? He did not." To the same effect in Ross v. State, 28 S.W. 199. See also following cases: Mendez v. State, 250 S.W. 680; Parker v. State, 76 Tex.Crim. Rep.. Under these authorities the evidence was clearly insufficient to show the existence of one of the indispensable elements of the offense denounced in Art. 1151, P. C.
Art. 483, P. C., makes the carrying of a pistol unlawful, and Art. 484, P. C., excepts out of the operation of Art. 483, peace officers, the carrying of arms on one's own premises, persons traveling, and others. One whom the facts place clearly within any of the exceptions contained in Art. 484, P. C., cannot be prosecuted for the offense of unlawfully carrying a pistol, whatever may have been his intent in carrying it. Herein lies the distinction between cases like Moore v. State, 86 Tex.Crim. Rep., and the instant case. The evidence shows appellant within one of said exceptions, viz.: The carrying of a pistol on one's own premises. This being established, the state's case fails under the indictment herein.
It does not follow, of course, that the appellant has violated no law under the testimony of the state's witnesses, but the prosecution instituted being for an offense which demanded proof beyond a reasonable doubt of the unlawful carrying of a pistol, and this proof, in our opinion, being insufficient, the judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON STATE'S MOTION FOR REHEARING.