The offense is unlawfully carrying a pistol; the punishment a fine of one hundred dollars.
A deputy sheriff arrested appellant on July 4, 1929, in the Corner Cafe in Hemphill, Texas. He found an unloaded 32 calibre *Page 360 pistol in appellant's pocket. In another pocket he found the magazine of the pistol. It had no cartridges in it. There was no testimony that appellant had any cartridges in his pockets. A witness for appellant testified that he had loaned the pistol to appellant a month prior to the arrest, and that a few days before the arrest appellant told him he would deliver the pistol to him in the Corner Cafe on the 4th of July, 1929.
Appellant timely and properly submitted a written requested instruction to the court which, in effect, would have advised the jury to acquit appellant if they believed from the evidence he had brought the pistol to the Corner Cafe to deliver it to its owner. The court refused to submit such instruction to the jury. Nowhere in the main charge was appellant's affirmative defense submitted. We are of the opinion that the learned trial judge fell into error in refusing the special charge.
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.