The judgment condemns appellant to pay a fine of $100 for unlawfully carrying a pistol.
Without controversy, the facts show that appellant engaged in a difficulty with the witness Douglass. Whether it took place upon a strip of land belonging to appellant outside of his field or upon a public road was a controverted issue, as was also his use of the pistol in the altercation.
Douglass and two other eyewitnesses testified that the appellant used the pistol as a bludgeon in making the assault. This was denied by the appellant. He testified that he owned but one pistol and that about a year and a half prior to the difficulty this had been loaned by him to Holley, the constable, and had never been returned. He sought to corroborate this by Holley and another witness. The refusal of the court to admit their testimony upon this point is made the subject of complaint.
Its admissibility is not apparent. The case rests upon direct and not circumstantial evidence. There is no evidence tending to identify the pistol which he possessed at the time of the offense. The testimony that the pistol owned by him was in possession of Holley would have been circumstance to show that that particular pistol was not in his possession at the time of the fight with Douglass. The crucial question was not whether he owned the pistol but whether he had one at the time. The rejected evidence bore no such relation to this issue as rendered its exclusion harmful.
The conflict in the evidence touching the possession of the pistol at the time and concerning the question as to whether it was upon appellant's land has been passed upon by the jury. Its solution of the controversy is binding upon this court. The judgment is affirmed.
Affirmed.
ON REHEARING. March 8, 1922. *Page 261