Grant v. State

• Decision Date: 06 June 1928
• Docket Number: (No. 11719.)
• Parties: GRANT v. STATE.
• Court: Texas Court of Criminal Appeals

13 S.W.2d 889

GRANT v. STATE.

(No. 11719.)

Court of Criminal Appeals of Texas.

June 6, 1928.

Rehearing Granted February 13, 1929.

Appeal from Hall County Court; A. C. Hoffman, Judge.

Jack Grant was convicted of unlawfully carrying a pistol, and he appeals. Reversed and remanded.

Fires & Williams, of Childress, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for unlawfully carrying a pistol; punishment, a fine of $100.

The record is before us without any bills of exception. From the record it appears that a jury was waived and the issues in this case submitted to the court. At the time of the alleged unlawful carrying of the pistol appellant was going from a point in one county to a point in another county of this state. The testimony as to the distance is conflicting, the sheriff of the county testifying that the distance between the two points was 35 miles, the testimony of appellant being that it was something over 50 miles. Apparently the defense interposed was that appellant was a traveler. This is a question of fact, and we are not disposed to hold that the judgment entered was an abuse of the right of the court to pass on the credibility of the witnesses and the weight of the testimony. George v. State, 90 Tex. Cr. R. 179, 234 S. W. 87; Wortham v. State, 95 Tex. Cr. R. 135, 252 S. W. 1063; Hall v. State, 102 Tex. Cr. R. 329, 277 S. W. 129.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

Jack Grant was a laborer upon a ranch belonging to John H. Gibson, which was situated about ten miles from Childress. He started to another ranch belonging to Gibson situated about 3½ or 4 miles northwest of Memphis, in Hall county. The journey was begun between sundown and dark. The estimate touching the distance between the two points was between 48 and 53 miles. No witness placed it less than 48 and none put it more than 53 miles. He was driving four mules hitched to two wagons — that is, one wagon and a trailer. He was accompanied by his wife. With that mode of conveyance it would require more than one day to make the journey. The route passed through Childress, the county seat of Childress county, and Memphis, the county seat of Hall county. Bedding was taken for camping purposes. After starting, they drove 23 or 24 miles and camped for the night.

On the appellant's route, it was necessary to cross a bridge over Red river. He entered it from the south. The bridge was narrow save at a place near the middle, where it was made wider in order that vehicles might pass each other. The state's witness Morehead entered the bridge from the south, driving an automobile. His vehicle and that of the appellant met at a point north of the passing place on the bridge. Morehead told the appellant to back his mules so that they might be passed. Appellant stated that he could not back them as they were unruly. They were hitched four abreast to a wagon. Two of them, according to the undisputed evidence, were wild, and it was difficult to control them, especially upon the bridge. Morehead claimed that he entered the bridge before the appellant passed the center thereof. This was denied by the appellant and a witness who was assisting him in getting the mules across the bridge. After Morehead's car was backed off the north end of the bridge, the appellant drove his mules past it. Morehead was angry and threw a rock at the appellant, and, according to other eyewitnesses, was in the act of picking up another rock when the appellant drew his pistol from the bedding upon his wagon. According to Morehead, the pistol was pointed at him, while, according to the other witnesses, it was not pointed at him. Other witnesses also testified that the appellant's vehicle had passed the center of the bridge before Morehead drove his car upon it.

The law does not prohibit a traveler from carrying a pistol on or about his person. By article 484, P. C. 1925, a traveler is specifically exempted from the prohibitions in article 483, P. C. 1925. The exemption continues while the journey is in good faith pursued. So long as he is a traveler within the meaning of the law and is pursuing his journey, an inquiry as to his intent in carrying the pistol is not pertinent. The use made of the pistol possessed by one claiming the exemption may become relevant in determining the good faith of his claim, but if the jury determines upon appropriate facts that he is a traveler and in the pursuit of his journey, his use of the pistol, though unlawful, would not subject him to a conviction for the offense of unlawfully carrying arms. From a leading case upon the subject we take the following quotation: "But it is contended that because the appellant had a pistol in his buggy, and on meeting a person with whom he had an altercation took the pistol menacingly in his hand, as if to shoot his adversary, he thereby commits an offense under this statute. He may be guilty of an assault with a deadly weapon, but it does not necessarily follow that he had the weapon unlawfully upon his person before committing the assault." Maxwell v. State, 38 Tex. 170.

The statute exempting travelers also exempts other classes of persons. The courts, in applying the statutes, have exempted classes of persons who are not within the terms of the exempting statute, article 484, supra. One who is not a traveler and not within any of the exemptions named in the statute may carry a pistol from one place to another under certain circumstances without violating the law. This is illustrated in many decisions. See Boissean v. State (Tex. App.) 15 S. W. 118; Cassi v. State, 86 Tex. Cr. R. 369, 216 S. W. 1099; Taylor v. State, 89 Tex. Cr. R. 112, 229 S. W. 552; Ross v. State (Tex. Cr. App.) 28 S. W. 199. When one not within the specific exemptions named in article 484, supra, is found carrying a pistol, his intent becomes an issue. This is illustrated by the precedents mentioned above and many others to be found in the annotations of the statutes. See Vernon's Ann. Tex. P. C. 1925, vol. 1, p. 275; also, the recent case of Deuschle v. State, 109 Tex. Cr. R. 355, 4 S.W.(2d) 559. Whether the evidence in a given case brings one within the exemption is a question of fact; that is to say, if there is a conflict in the evidence, one phase of which points to the guilt of the accused and another to the exemption mentioned, the decision of the jury under proper instructions and legitimate evidence is binding upon this court; and the same is true when the trial is before the judge without a jury. It may be added that if the evidence is undisputed and establishes a given state of facts upon the effect of which minds may differ, that is, that one mind might draw the inference of guilt and another the opposite, the finding of the jury as to the sufficiency of the evidence in the event of a conviction would be binding upon this court. If, however, the evidence, whether undisputed or conflicting, is such from which no conclusion other than that of innocence can be drawn, this court is privileged, and it becomes its duty to set aside the conviction. See Chambers v. State, 34 Tex. Cr. R. 293, 30 S. W. 357. Moreover, if the evidence is conflicting or susceptible of different interpretations in a trial before a jury, it is incumbent upon the court, upon proper request, to place before the jury in appropriate language a charge which will invoke their decision as between the conflicting facts or theories. Before the advent of the automobiles and good roads, this court found itself guided by a line of precedents which, under the changed conditions now prevailing, are difficult to apply. It is believed, however, that the principles underlying the precedents, a synopsis of which we have undertaken to give above, are yet available in controlling the decision of appeals to this court.

In the case of George v. State, 90 Tex. Cr. R. 179, 234 S. W. 87, it appeared that George, in a swiftly moving automobile, had traveled through a densely settled country along the public highway in broad daylight from the city of Taylor to the city of Austin, the capitol of the state, and returned the same day within a short time. He claimed that he had left Taylor to go to the city of San Antonio, a distance of some 80 miles from Austin. There were facts detailed by the officers who arrested him which tended to discredit his story, which facts he failed to use available witnesses to contradict. The good faith of his defense was impugned by the facts developed. They were susceptible of a construction or interpretation opposed to that which George advanced in support of his claim of exemption from prosecution. The case was tried before the court, and the finding by the judge in favor of the state was upheld upon appeal.

In Wortham's Case, 95 Tex. Cr. R. 135, 252 S. W. 1063, on the original hearing, the case of George v. State, supra, was adverted to and the judgment was affirmed. However, on the motion for rehearing the record was perfected by the presentation of a statement of facts and the case reversed because the court, upon the request of the appellant, failed to submit to the jury appropriate instructions enabling them to decide the question of fact.

In the case of Christian v. State, 105 Tex. Cr. R. 563, 289 S. W. 54, the court on the subject used the following language:

"It has been held that the use of automobiles and improved roads, as well as the distance traveled, must be taken into account. See George v. State, 90 Tex. Cr. R. 178 [179, 234 S. W. 87]; Wortham v. State, 95 Tex. Cr. R. 135 ; Welch v. State, 97 Tex. Cr. R. 617 ; Armstrong v. State, 98 Tex. Cr. R. 335 . However, giving due weight to these modified conditions and means of traveling, the opinion is expressed that the evidence in the present instance does not warrant a finding against the appellant. See Impson v. State [Tex. App.] 19 S. W. 677; Alexander v....