Campbell v. State

• Decision Date: 23 February 1910
• Citation: 125 S.W. 893
• Parties: CAMPBELL v. STATE.
• Court: Texas Court of Criminal Appeals

125 S.W. 893

CAMPBELL v. STATE.

Court of Criminal Appeals of Texas.

February 23, 1910.

Appeal from Hill County Court; Horton B. Porter, Judge.

P. B. Campbell was convicted of unlawfully carrying a pistol, and he appeals. Reversed and remanded.

Collins & Cummings, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

This appeal is prosecuted from a conviction had in the county court of Hill county on the 10th day of November last, finding appellant guilty of unlawfully carrying a pistol on and about his person; his punishment being assessed at a fine of $100.

The testimony shows that on the 30th day of October preceding, in front of his (appellant's) place of business, Frank Glasgow took from appellant, while seated in an automobile, a pistol. This is the sole testimony by the state. Appellant introduced several witnesses, and also testified in his own behalf, to the effect, in substance, that on the day in question he had started from the town of Hillsboro, intending to go to Waco, and that he was going from Hillsboro to the town of West in an automobile, and expected at the last-named place to take the train from West to Waco, and to be gone some two or three days.

Whatever we may personally think of the evidence it undoubtedly raised the issue that appellant was a traveler, as that term has been defined by many decisions of this court, and he was entitled, on timely request, to an appropriate and correct charge on that issue. Touching this matter the court gave in a charge to the jury the following instruction: "You are further charged that if you believe from the evidence that at said time and place the defendant had on his person a pistol, but you further believe that at said time the defendant was a person traveling as contemplated by the statute, or if you have reasonable doubt as to whether he was or not, then you will acquit the defendant." This charge was at the time excepted to, upon the ground that it was vague, indefinite, and uncertain, and furnished to the jury no criterion by which they could determine who was a person traveling as contemplated by the statute, and on the ground that the only question proper for the jury to determine was whether or not the defendant had then started on a journey to Waco, and if they believed that he had so started on such journey it was a question of law for the court, and not a question of fact, as to whether or not he was a person traveling as contemplated by the statute. In connection with this exception counsel for appellant requested the court to give in charge to the jury the following special instruction: "You are instructed, as the law of this case, that the defendant, P. B. Campbell, would have a right to carry a pistol, if you believe that he had begun his journey to West and Waco, in McLennan county, Texas, and if you have a reasonable doubt as to whether or not he had started to West and Waco at the time he stepped into the automobile, and at which time he was arrested, you will give the defendant the benefit of that doubt, and return a verdict of not guilty." We think that the exceptions urged to the charge of the court are well taken, and...