Smith v. State

42 Tex. 464

Opinion

Gould, J.

The appellant was convicted under an in dict-amen t charging that he “at a place not then and there being “ his own premises or place of business, did then and there “ unlawfully carry on his person a certain pistol, the said Ban- “ sey Smith not then and there being a person authorized by “ law to carry said pistol. ” If to this were added “ and not then “ and there having reasonable grounds for fearing an unlawful “ attack on his person,” the indictment would, we think, have been sufficient, under the rules laid down in the case of The State v. Duke, just decided.

The conviction, however, cannot be sustained under the facts in proof. The defendant, living in Jasper county, started with his wagon to go a distance of sixteen or seventeen miles, to a point in Mewton county, after some pork, and expecting to be gone two or three days and to camp out, he took his bedding and saddle-bags or walked along. Whilst on this trip he was seen to reach into the wagon, take a pistol from his wallet and snap it at. some partridges, and then return it to his baggage. The law does not prohibit “ persons traveling “ in the State from keeping or carrying arms with their bag- “ gage.” Without undertaking to define the rather indefinite expression “ persons traveling in the State,” we are of the opinion that the facts stated show that the defendant was traveling within the meaning and spirit of the law. Because the court erred in refusing a new trial, the judgment is reversed and the cause remanded.

Remanded.