Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 464
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46'4 SMITH V. THE STATE. [Term of
Statement of the case.
"with the pistol at the time laid in the indictment, and there"upon
the danger was not immediate and pressing." What
circumstances shall be sufficient to show that tle danger was or
was not "immediate and pressing," evidently is not a mere
question of law, but a mixed question of fact and law. The
statute does not prescribe that the party from whom an attack
is feared must be actually present before preparation is made
for self-defense. It is easy to imagine circumstances under
which the danger might be most imminent, though the person
from whom it was threatened was not immediately present.
The court should have admitted the evidence and submitted
the defense as a question of fact to the jury, giving them, of
course, propel instructions as to the meaning of the statute.
In reversing and remanding the cause for this error, it is
proper to call attention to the indictment under which the
ruling in the case of The State v. Duke, just decided, is defective.
The judgment is reversed and the cause remanded.
RANSEY SMITH v. THE STATE.
1. CARRYING DEADLY WEAPONS-PERSONS TRAVELING. See facts held
sufficient as a defense for carrying a pistol.
2. INDICTMENT. An indictment must negative the conditions under which
deadly weapons may be carried. (Duke v. The State, supra.)
APPEAL from Jasper. Tried below before the Hon. H. C.
The indictment alleged that defendant "at a place not then
"and there being his own premises or place of business, did
"then and there unlawfully carry on his person a certain pis"
tol, the said Ransey Smith not then and there being a person
'authorized by law to carry said pistol."
From the statement of facts it appeared that December
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/472/: accessed November 19, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .