Holland v. State , 73 Ark. 425 ( 1904 )

McCurroch, J.,

(after stating the facts.) Though the State relied upon only one witness, as against the testimony of appellant and his witness Williams, as to the time of the commission of the offense, we cannot say that the jury were not warranted in accepting the statement of the one witness on that point, and finding the defendant guilty. Moreover, neither the appellant nor Williams testified that appellant did not also have a pistol at the time named by the other witness, and the jury could have found that he carried a pistol on more than one occasion. Their testimony did not connect the occasion on which they say he carried the pistol with that testified to by the other witness. The jury found that he carried the pistol within one year next before the filing of the information, as related by the State’s witness, and we will not disturb the verdict for insufficiency of the evidence.

The court instructed the jury, in the fifth instruction asked by appellant, to the effect that, before they could convict, the State must have shown that, the pistol was carried as a weapon within one year before the filing of the information. He was not prejudiced by the refusal of the court to again instruct on that point as asked in the fourth instruction.

Nor was he prejudiced by the court’s refusal to instruct as to the defense of carrying a pistol on a journey. There was no testimony tending to establish that defense, and to warrant the instruction. If it be conceded that the distance traveled and other circumstances surrounding it were ordinarily sufficient to warrant the jury in finding that the defendant was on a journey, within the meaning of the .exception in the statute, his own testimony shows affirmatively that he was not pursuing a journey when seen with the pistol. He had abandoned the journey, if he had been on one, and stopped at the home of another, and from there went to the church where he performed his customary service as sexton. One who has been on a journey cannot, after return to his accustomed haunts, continue to carry, the pistol, and still claim the benefits of the exception in the statute.

The judgment is affirmed.