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[Cite as Imspon v. State, (Tex. Crim. App.) 19 S.W. 677 (1892).]

Impson v. State.

(Court of Appeals of Texas. June 1, 1892.)

Carrying Arms.

Where defendant went to a city 60 miles distant, taking with him his pistol to have it repaired, and was arrested on the train which he had boarded for home, he is a "person traveling," within the exception of Pen. Code, art. 319, defining the offense of carrying arms.

Appeal from Lamar county court.

Isaac Impson was convicted of carrying arms, and appeals. Reversed.

Park & Ownby, for appellant. R. H. Harrison, Asst. Atty. Gen., for the State.

Davidson, J. This is an appeal from a conviction based upon an information charging appellant with carrying on his person a pistol. By the evidence it is (p.678) shown that the appellant lived in the Indian Territory, about 60 miles from the city of Paris, in Lamar county, to which place he brought the pistol, and while there had it repaired. He was seen on the railroad train with the pistol in his possession, and was there arrested, and charged with a violation of the statute prohibiting carrying arms. He had bought a return ticket to his home, and had just boarded the outgoing train for that point, when the officer made the arrest. Such are, in substance, the relative facts in this case. We do not think this evidence constitutes a violation of the statute. The statute prohibiting the carrying of arms does not apply to a person traveling in this state. This, by act of the legislature, constitutes an exception to the law. Pen. Code, art. 319 ; Stilly v. State, 27 Tex. App. 445, 11 S. W. Rep. 458 . Neither would it be in violation of law for a person to carry his pistol to a proper place in order to have it repaired. While, under the law, he should not be held guilty of its violation under such circumstances, yet he would not be permitted to use this exception of the law as a means of violating it. "It would be an unreasonable interpretation of the intent of the law to hold that a person traveling might stop in a town or city, and idly stroll through its streets, and visit its gambling dens and saloons and public places, armed with a pistol. The practical result of such an interpretation of the statute would cause cities and towns to be infested with armed men, while the citizens of such places would be prohibited from carrying arms to protect themselves from these privileged characters." Stilly v. State, 27 Tex. App. 445, 11 S. W. Rep. 458 . The exceptions contained in the statute cannot be used as a cloak for violating the statute itself. 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. The judgment is reversed, and the cause remanded. Judges all present and concurring.