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[Cite as Eubanks v. State, (Tex. Crim. App.) 40 S.W. 973 (1897).]


(Court of Criminal Appeals of Texas. May 19, 1897.)

Carrying a Pistol--Sufficiency of Evidence.

Defendant was living with, and in the employ of, his brother, 25 or 30 miles from his father's residence. His brother sent him to their father's, accompanied by his little nephew, the trip requiring three days' absence. Held that, while on such trip, defendant was a traveler, within the statute making the carrying of a pistol on and about the person an offense, and providing that it shall not apply to persons traveling, etc.

Appeal from Mills county court; W. A. Blackburn, Judge.

Charles Eubanks was convicted of a crime, and appeals. Reversed.

J.L. Lewis and G. N. Harrison, for appellant. Mann Trice, for the State.

DAVIDSON, J. Appellant was convicted of carrying on and about his person a pistol, and appeals.

The evidence shows that appellant was living about 25 or 30 miles from his father's residence, and was at the time employed by his (p.974)brother; that his brother lived in an adjoining county, and he sent defendant, in a wagon, accompanied by his little nephew, to their father's residence, for some purpose; that the trip contemplated an absence of three days, and did actually occupy that length of time. On this trip, and while returning from his father's residence, he was seen, while going along the public road, to fire a pistol twice. These seem to be the uncontroverted facts. It is contended that appellant was a traveler, within the purview of our statute, under the circumstances above indicated. We are of opinion that he was a traveler, and that, under the state of case made, an acquittal should have been directed. Appellant was not charged with firing a pistol along or across the public road, but was simply charged with carrying said pistol. The judgment is accordingly reversed, and the cause remanded.