¶1The offense is carrying a pistol, a prior conviction having been alleged to enhance the punishment. Upon his plea of not guilty, the jury found the appellant guilty and assessed his punishment at 7 months in jail.
¶2No brief has been filed in appellant’s behalf.
¶3The state’s evidence, by the testimony of Police Officer J. D. Span, shows the following: A young Negro man ran out of a club or bar in the 3200 block of Lyons Avenue,, in Harris County. In a second or so the appellant ran out of the same doorway and a shot was heard.
¶4When appellant was some 60 feet from the club, and while he was running very fast, he fired a shot at the young Negro.
¶5The patrol car was driven between the two men after the first had crossed the street intersection at the end of the 3200 block *769of Lyons Avenue, and the appellant, with a .25 caliber Baretta pistol in his hand, was confronted by Officer Span with his pistol drawn and was ordered to drop his gun. On the third demand, accompanied by the officer’s statement that if he did not drop it he intended to shoot him, the appellant threw the pistol to the ground and it fired.
¶6The pistol, which the evidence shows had four live shells in the clip, was introduced in evidence.
¶7The prior conviction was proved as alleged.
¶8The appellant did not testify hut sought by his witnesses to present the defense that the pistol was lawfully kept at the club, and was lawfully used by the appellant to defend himself against an unlawful attack.
¶9As we view the evidence, no issue was raised which would he a defense to the carrying of the pistol in pursuit of the fleeing man, even though the pistol may have been lawfully kept in the club to prevent disorder.
¶10It may he asserted as a legally sound proposition that, if the conditions which sustain carrying the pistol cease, the right to carry it also ceases.” Moore v. State, 86 Tex.Cr.R. 502, 217 S.W. 1036.
¶11The court did not err in refusing appellant’s requested charge submitting such defense.
¶12The evidence is sufficient to sustain the conviction and we find no reversible error.
¶13The judgment is affirmed.
¶14ON MOTION FOR REHEARING
¶15Appellant seeks to raise, by reference to an agreement which appears in the transcript, the question of the absence of the judge during the selection of the jury, which we condemned in Pennell v. State, 164 Tex.Cr.R. 401, 299 S.W.2d 699. Such question is not presented by bill of exception, nor does the record affirmatively reflect that the judge in fact did absent himself from the courtroom during a part of the proceedings, hence the question is not presented for review.
¶16Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.