Carrying a Pistol — Danger Imminent and Threatening. — On a prosecution for unlawfully carrying a pistol, where it appeared that defendant had been forced into a fight in his own house, and some few minutes later the parties came together again in front of his house, at which time his antagonist was seeking to use a knife upon him, whereupon defendant drew and fired his pistol, Held, that there being no time to admit of the arrest of his antagonist, and the danger being imminent and threatening, the facts do not justify a conviction.
DAVIDSON, JUDGE.
This conviction was for carrying a pistol. The evidence discloses, that defendant had been forced into a difficulty in his own house; that he had been greatly cursed and abused; that it terminated in a second trouble three to five minutes later, on the sidewalk in front of defendant's house; that during the latter difficulty his antagonist was seeking to use a knife, when defendant exhibited and fired the pistol; that defendant's assailant was in the wrong throughout the transaction, and was determined upon a continuance of the difficulty; and the facts do not justify the conviction.
The danger was not only imminent to defendant, but had been merged into an actual and serious attack. There was not sufficient time to admit of the arrest of the party, and it may be inferred, we think, from the facts, that defendant could not have left his house except by passing his belligerent and armed enemy. This, the sequel shows, would have been attended with danger to his personal safety. Coleman v. The State, 28 Texas Crim. App., 173.
The judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.