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[Cite as Darby v. State, 23 Tex. App. 407, 5
S.W. 90 (1887).]
J. O. Darby v. The
1. Carrying a
Pistol--Traveler.--The proof showed that the accused, when he carried the
pistol on his person, was going from his home in Williamson county to the site
of said county, intending to return on the following day. Held that such
facts did not constitute the accused a traveler within the meaning of that term
as it is used in the statute denouncing a penalty for the carrying of a pistol
on the person.
2. Same--Fact Case.--See
the statement of the case for evidence adduced in a trial for carrying a pistol
held insufficient to support the defense that, when he carried the
pistol, the accused had reasonable grounds to apprehend an unlawful attack upon
his person, etc.
Appeal from the County
Court of Williamson. Tried below before Hon. W. M. Key, County Judge.
The conviction was for carrying a pistol, and the
penalty imposed was a fine of twenty-five dollars.
The evidence showed in substance, in addition to facts recited in the
opinion, that at a point between his home and Georgetown, the county site of
Williamson county, the defendant overtook one Henry Hoyle, drew a pistol
partially from his pocket, and ordered the said Hoyle to throw up his hands,
with the remark: "You tried to murder Hayne. He don't fight, but I am a fighting
man. Hold up your hands or I will kill you!" The witness Hoyle, by whom these
facts were proven, admitted that, a short time prior to the meeting referred to,
he went to a mill in the neighborhood, armed with a gun, and said, in the
presence of one or more parties (one of whom corroborated his statement), that
if defendant "accused him of stealing cotton, he would whip defendant before
hell could scorch a feather." This witness also stated that he reminded
defendant, at the time of (p.408) this offense,
that he, defendant, knew that he, Hoyle, was not armed, and had agreed not to
J. B. Robinson and Makemson &
Price, for the appellant.
W. L. Davidson, Assistant Attorney General,
for the State.
Willson, Judge. This appeal
is from a conviction of the offense of unlawfully carrying a pistol on the
person. The defenses were, 1, that defendant, at the time he carried the pistol,
was a traveler; and, 2, that at said time he had reasonable ground for fearing
an unlawful attack upon his person, and that the danger was so imminent and
threatening as not to admit of the arrest of the party about to make such
attack, upon legal process. It was conclusively proved that the defendant
carried a pistol on his person, and the evidence also shows that the two above
named defenses did not exist. He was not a traveler. He resided in Williamson
county, and was merely going from his residence to the county site of said
county, a distance of about eighteen miles, intending to return the next day.
These facts certainly did not constitute him a traveler, within the common
meaning of that word, and within the spirit of the statute.
The cases upon this subject referred to by appellant's counsel are by
no means parallel cases with this, in their facts. (Irvine v. The
State, 18 Texas Ct. App., 51; Rice v. The State, 10 Texas Ct. App., 288; Smith v. The State, 42 Texas, 464; Maxwell v. The State, 38 Texas, 170.)
As to the other defense, the evidence fails to show that if he was in
any danger whatever, it was such danger as the exception in the statute
We find no error in the conviction, and the judgment is affirmed.
Opinion delivered June 1, 1887.