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[Cite as Rice v. State, 10 Tex. App. 288 (1881).]

J. H. Rice v. The State.

Carrying Weapons.--To a prosecution for unlawfully carrying a pistol about his person, the defendant set up the defense that he was a traveler, and as such was expressly exempt from the penalties denounced against persons carrying prohibited weapons. The evidence showed that the defendant, when arrested in C. county, was en route with a herd of cattle from another county to a market in Kansas, and progressed about ten miles per day. Held, that he was a traveler within the spirit and meaning of article 319, Penal Code.

Appeal from the County Court of Clay. Tried below before the Hon. W. B. Plemons, County Judge.

The opinion discloses the case.

R. M. Donley, for the appellant.

H. Chilton, Assistant Attorney General, for the State.(p.289)

Winkler, J. The appellant was prosecuted in the County Court, charged with carrying about his saddle a pistol. The prosecution was had in Clay county. Agreeably to the testimony as set out in the statement of facts, the defendant, at the time of his arrest, was traveling with a herd of beef cattle, to market, from Throckmorton county, Texas, to Honeywell, Kansas, and was encamped for the night in Clay county. He kept his pistol in his baggage wagon at night, and carried it suspended to the horn of his saddle during the day, and traveled at the rate of nine or ten miles per day. It was proved that Throckmorton county is about one hundred and sixty miles southwest, and Honeywell, Kansas, about two hundred and seventy-five miles north of Clay county, Texas.

It is assigned as error that, agreeably to this testimony, the defendant at the time he carried the pistol was a traveler. It is specially provided that the provisions of the Penal Code which prohibit the carrying of certain arms shall not apply to persons traveling. Penal Code, art. 319. We are of opinion that agreeably to the testimony the defendant at the time of his arrest was a traveler within the spirit and meaning of the exception made in favor of travelers by the Code, and therefore that the evidence does not support the finding and judgment. On this account the judgment will be reversed and the cause remanded.

Reversed and remanded.