DocketNumber: No. 10565.
Citation Numbers: 294 S.W. 218, 106 Tex. Crim. 666
Judges: LATTIMORE, JUDGE. —
Filed Date: 1/19/1927
Status: Precedential
Modified Date: 1/13/2023
Our legislature says in Art. 484, P. C., that "A person traveling" who carries a pistol is not punishable therefor — but fails to define or say who is a person traveling, and the courts through all these years have traveled devious routes, going from one set of facts to another different, and on to another, trying in each to find some resting place upon which might be planted judicial announcement as to who is a traveler, but, alas! have found it not. The ancient with his ox cart, the Mexican with his burro, the pioneer with his roadless route, the modern highway, the automobile with its distance-annihilating speed, the increase of population, the joy-ride extending itself in a few hours over several counties, the man really convoying valuables, and the happy-go-lucky nomad who spends but a night in each tourist park and wanders on and on forever — all these aid in graying the hair of a conscientious court trying to say who may or may not avail himself of the exemption of being a *Page 668 person traveling, which, by the way, the legislature ought to repeal or define.
Appellant says that he was a traveler, that he got in his car at Waco, McLennan County, to go to Fairfield, Freestone County, expecting to spend several days at the latter place with relatives and then return. His way led over a part of two counties and across another in which, in the not remote past, the Governor had declared martial law, and appellant felt it not unwise to avail himself of his right as a traveler to carry a pistol in his car. He did so, but when he got to Mart, an I.-G. N. metropolis on his route, he was arrested and locked up for some reason not disclosed by this record. The vigilant officer, anxious to do his full duty, returned to appellant's car after locking the latter up and found in same a pistol. He filed complaint against appellant. He affirms that the car was headed in the general direction of Fairfield and testifies to nothing raising doubt as to the truth of appellant's claim that he was on his way to the latter city. Was he a person traveling? We said in our original opinion that the jury did not have to accept the statements of the man whose self-interest was apparent because he was the accused. We erred to the extent of referring to the jury, because it appears that appellant had waived a jury and was tried by the judge. We are thus deprived of having before us a written charge from which we might ascertain the view the court entertained as to the law applicable.
The latest case on the point at issue is Christian v. State,
"That the accused is a traveler is a fact to be passed upon by the jury, and their finding is usually conclusive of that question, yet this is not an invariable nor an arbitrary rule. If the defense is an honest one, and supported by the facts, and there is no evidence tending to impeach it, the jury should acquit, and, under such circumstances, if a conviction be secured, it should not be permitted to stand. As disclosed by the evidence before us, appellant is brought within the exception contained in the statute, and this is manifest from the state's testimony."
In that case the distance traveled by the accused was approximately similar to this case. In Williams v. State,
For the reasons mentioned the motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded.
Reversed and remanded.