Dolezal v. State

MOBBOW, Judge. Charged with the offense of carrying on and about his person a. pistol on or about the 12th day of October, 1916, appellant, Frank Dolezal, was tried before a jury and convicted, and his punishment fixed at a fine of $100. The fact that appellant had possession of the pistol at the time and place charged was conceded, but it was urged in defense that the pistol was broken and not in condition to be shot. S. T. Petrosky testified that he saw the appellant have and carry on and about his person a pistol on October 12, 1916, in Harris County, Texas; and on cross-examination by appellant, he further stated that the appellant took the pistol out of his pocket and pointed it at the witness; that it was a small automatic pistol. A small blue automatic pistol was exhibited to him by appellant’s counsel. He stated that it looked like the one appellant had. Appellant testified that the pistol exhibited to the witness was the one that he had in his possession at the time of the alleged offense and he didn’t own, and never owned, any other. It was conceded by the State that the pistol exhibited at the trial was in such condition that it would have been no offense to carry it. The State, in rebuttal, introduced testimony to the effect that at the time the appellant was charged with possession of the "pistol, appellant had cursed the prosecuting witness Petrosky, that Petrosky struck the appellant, and that the appellant reached in his pocket and pulled out a pistol, pointed it at Petrosky and- snapped it twice. There was evidence introduced by the State' also that the pistol exhibited at the trial was not the same pistol that the appellant had at the time of the alleged offense. *605 Complaint is made in the first bill of exceptions to a remark made by the presiding judge in response to a^ request by the prosecuting attorney that he be permitted to lead the State’s witness Schneider, the remark complained of being as follows: “Yes, the witness is an unwilling witness and you may lead him.” -While the statute prohibits the trial judge from commenting upon the testimony, the rule of law followed by this court is that it is not every comment that requires a reversal of the judgment, but that before a reversal is authorized, it is essential that the probability of injury shall be disclosed by the record. Stayton v. State, 32 Texas Crim. Rep., 33; Milo v. State, 59 Texas Crim. Rep., 196. The bill of exceptions in question fails to show that any testimony was elicited from the witness Schneider, and in consequence of such failure does not show any error. Harris v. State, 37 Texas Crim. Rep., 441. Looking to the statement of facts, however, it appears that the witness Schneider testified, in effect, that he.was unwilling to testify because he was a friend to both parties. The State, in rebuttal, introduced a witness who testified that, two or three weeks prior to the difficulty between appellant and Petrosky, above mentioned, the appellant had a pistol out in a road and fired it several times. The admission of this testimony is complained of as being “irrelevant and immaterial, and further, that the State was relying to sustain a conviction on the charge of carrying a pistol on the day and date alleged in the indictment, and was highly prejudicial.” The evidence was admissible in view of appellant’s evidence that the pistol carried by him was broken and could not be shot and that he owned and had no other pistol. Craig v. State, 23 S. W. Rep., 1108; Stovall v. State, 97 S. W. Rep., 92; Bedford v. State, 75 Texas Crim. Rep., 309, 170 S. W. Rep., 727; Lampkin v. State, 47 Texas Crim. Rep., 625; Briscoe v. State, 32 Texas Crim. Rep., 411; Upton v. State, 33 Texas Crim. Rep., 231; Irvin v. State, 51 Texas Crim. Rep., 52; Griffin v. State, 54 Texas Crim. Rep., 374, and in the absence of a demand that the State elect as to which transaction it would rely on for a conviction, it was proper testimony going to establish the offense charged. Bradshaw v. State, 32 Texas Crim. Rep., 381. Appellant complains in his third bill of exceptions of the action of the court in permitting the State to prove that at the time of the alleged offense, “The defendant called poung Petrosky a damn liar, and young Petrosky jumped off a hay wagon and struck him twice, and it was then that the defendant reached in his right side pocket and pulled out a gun.” This testimony was introduced by the State in rebuttal, and is deemed proper as meeting the issue made by the appellant that the pistol was not in condition to be shot. McMahon v. State, 16 Texas Crim. App., 357; Muldrew v. State, 73 Texas Crim. Rep., 463, 166 S. W. Rep., 156. A part of the details of the difficulty between appellant and Petrosky were drawn out by appellant on cross-examination of the witness Petrosky, and the details, the admission of which are *606 complained of, were a part .of the res gestae, and for both of these reasons were admissible. The evidence, in our judgment,' is sufficient to support the conviction, and it is ordered that the judgment of the lower court be affirmed. Affirmed.