#### HYDE v. STATE.

No. 16528.

Court of Criminal Appeals of Texas.

Feb. 7, 1934.

Bloyd W. Davidson, State’s Atty., of Austin, for the State.

*201MORROW, Presiding Judge.

The conviction is for unlawfully carrying a pistol; penalty assessed at confinement in the county jail for sixty days.

The indictment was returned in the district court of the Forty-Seventh judicial district, and by proper proceeding transferred to the county court of said county.

The offense is denounced by article 483, P. O. 1925, and punishable by a fine of not less than $100 nor more than $500, or by confinement in jail for not less than one month nor more than one year.

The evidence shows that the appellant had a pistol in his hand while upon one of the streets of the city of Amarillo, Tex. He was pointed out to the jury upon the trial by the state’s witness as H. W. Hyde. No testimony was offered by the appellant.

The issues of fact were submitted to the jury in the charge of the court. The trial resulted in a verdict i>f conviction, with the penalty as stated above.

There are several bills of exception. Bill No. 1 complains that counsel for the state used in argument the following language: “They did not put on any proof of any extenuating circumstances, and there is no proof of his right to carry a gun.”

The contention that the remark was violative of article 710, O. O. P., forbidding comment on the failure of the accused to testify, is not regarded as tenable. Nothing in the record indicates that there were not other witnesses besides the appellant who might have given testimony explanatory of the circumstances under which the pistol was possessed. See Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580; Jones v. State, 85 Tex. Cr. R. 538, 214 S. W. 322.

Bill No. 3 reveals the fact that the witness for the state described the appellant as H. W. Hyde, which was his real name. The name appearing in the indictment was H. D. Hyde. The Code of Criminal Procedure contains provision for correction in the name. See articles 493 to 497, C. C. P., 1925. The fact that a mistake in the indictment was made in writing the middle initial “D” instead of “W” did not, under the facts, constitute a variance or raise a question of identity. See Roberts v. State, 99 Tex. Cr. R. 492, 269 S. W. 103; Williams v. State, 115 Tex. Cr. R. 574, 27 S.W.(2d) 217; Gayton v. State, 116 Tex. Cr. R. 215, 32 S. W.(2d) 361.

Bill No. 4 advances the contention that a ease against the appellant was not made by proof that while upon a public street he was shown to have had a pistol in his hand. In this view we think the appellant is mistaken. The proof made was sufficient prima facie to show that the statute, article 483, P. O., was violated. If there existed facts or circumstances which would have excused or justified the appellant in his actions with reference to the- pistol, it was not incumbent upon the state to introduce them. If there were exculpatory facts, it was not incumbent upon the state to produce them. The ease of Davis v. State, 91 Tex. Cr. R. 156, 237 S. W. 925, in which there was a reversal of the conviction, is in some respects analogous to the present. However, in that case the state’s testimony was exculpatory. The officer who arrested the accused testified: “I saw the whole transaction. The pistol was not loaded, but was in working condition. At the time I took the pistol and arrested the defendant, he told me it was not his pistol, and that he was just looking at it.”

The case of Guy v. State, 74 Tex. Cr. R. 620, 170 S. W. 303, is one in which there was a reversal although the accused had a pistol in his hand and fired it. However, there was explanatory testimony to the effect that he had not carried the pistol, but that it was simply handed to him and fired by him. The firing of a pistol under some circumstances might constitute an offense, but not necessarily the offense of carrying a pistol. In the present instance, as to how long the appellant had had the pistol, from whence it came, and what use he was making of it, the evidence is entirely silent. On the sufficiency of the evidence, the cases of Evans v. State, 112 Tex. Cr. R. 322, 16 S.W.(2d) 537; Holliday, v. State, 105 Tex. Cr. R. 456, 288 S. W. 1077; Kmiee v. State, 108 Tex. Cr. R. 604, 2 S.W.(2d) 252, are upon the facts analogous to those appearing in the present appeal. In the opinion in the Kmiee -Case, supra, the cases of Wallace v. State, 82 Tex. Cr. R. 658, 200 S. W. 836, and Pyka v. State, 80 Tex. Cr. R. 644, 192 S. W. 1066, and many others, are mentioned as having been examined and analyzed. In considering the present appeal, the cases mentioned in the Kmiee Case, supra, have been re-examined. Without further discussion, however, we are constrained to regard the evidence in the present instance as sufficient to support the conviction.

The judgment is affirmed.