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[Cite as Stayton v. State, (Tex. Crim. App.) 40 S.W. 299 (1897).]

STAYTON v. STATE.

(Court of Criminal Appeals of Texas. April 14, 1897.)

Carrying Weapons.

A conviction for carrying a pistol was not supported where defendant, when seen with the pistol, was a traveler, pursuing his route from his home to his contemplated destination, though he afterwards abandoned his journey.

Appeal from Burnett county court; J. A. Crews, Judge.

Alley Stayton was convicted of carrying a pistol, and appeals. Reversed.

J.G. Cook and I. D. White, for appellant. Mann Trice, for the State.

DAVIDSON, J. Appellant was convicted of carrying a pistol, and his punishment assessed at a fine of $25; hence this appeal.

The questions raised in the record are with reference to the charge given by the court and the refusal to give requested instructions asked by the appellant. Inasmuch as we deem the testimony insufficient to support the judgment of conviction, those questions will not be discussed. The record discloses that appellant left his home, in Williamson county, on the morning of the 15th of September, 1894, for the purpose of going to the Indian Territory; that he lived 18 or 20 miles south of the village of Oakalla; that he had arranged to go as far as Hill county in company with J. B. Williams and family; that said Williams started on the trip in advance of the appellant, but they had agreed to meet at Oakalla, from which point they were to continue on their journey together. Oakalla was on the appellant's road to his destination. While en route from his home to Oakalla, and about two miles from said town, appellant passed some gentlemen on the side of the road, and made inquiries as to whether or not they had seen the said Williams pass along the road that day. Upon receiving a negative answer, he took his pistol off, and laid it upon the ground, where it remained until he resumed his journey. He stopped and talked with these gentlemen a short while, and pursued his journey. He informed these gentlemen that he was on his way to the Indian Territory, and was to travel with said Williams and family as far as Hill county, and had promised to meet Williams at Oakalla. One of these gentlemen (a brother of said Williams) accompanied defendant on the road in the direction of Oakalla. On the road they passed said J. B. Williams at the residence of a brother. Defendant was requested by said Williams to spend the night there, but declined, stating that he would go on, and spend the night with a relative by the name of Roberts, agreeing to meet Williams the next morning in the town of Oakalla. The next morning, appellant, on reaching Oakalla, went into a store, pulled off his pistol, and left it in said store until he was ready to resume his journey. He remained about the village some time, and left, carrying his pistol with him. These facts are not questioned. It is also uncontradicted that the defendant accompanied said J. B. Williams and family to Hill county, where he engaged in picking cotton during the season for that sort of employment, at the end of which time, instead of going to the Indian Territory, he returned to his home in Williamson county. The facts show that the place where he was seen with the pistol was in Burnett county. We do not believe these facts constitute a violation of the law. They come within the rule laid down in Stilly v. State, 27 Tex. App. 445, 11 S.W. 458 . So far as the record discloses, he was a traveler, and was pursuing the route that led from his home to his contemplated destination; and it is immaterial that he abandoned his journey to the Indian Territory upon reaching Hill (p.300) county. Because the evidence does not support the conviction, the judgment is reversed, and the cause remanded.

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