behind a plank which had been put up in the room to serve as a counter for a candy stand, and he was engaged in keeping the candy stand, having been employed for that purpose by one Franklin, the proprietor of the same; and Franklin had a pistol at the candy stand, which he had laid behind a box.

Defendant offered to prove, in defence, that the pistol he was seen to have on that occasion was Franklin's, which had been placed behind the box; and that he merely picked it up and held it in his hand for a moment and then replaced it behind the box. Upon objection made by the county attorney this proposed testimony was rejected, to which action of the court the defendant excepted, and his exceptions present the only question in the case which we are required to determine.

We are of the opinion that the testimony offered by the defendant was admissible, and that the court erred in rejecting it. If the defendant, as he offered to prove, merely picked up the pistol and immediately replaced it, such act would not come within the spirit and intent of Article 320 of the Penal Code. It would not be "having or carrying the pistol about his person," within the meaning of the law. Such a handling of the pistol was perhaps through idle curiosity, and without any intent whatever to violate the law. It would be a perversion of reason and justice, it seems to us, to hold that the law intends that punishment shall be visited upon an act of this character. True, one of the State's witnesses testified that the defendant took the pistol from his pocket, and put it back in his pocket. If this be true, he would, we think, be guilty of a violation of the law, for that would be having and carrying about his person a pistol. But defendant proposed to prove that this was not true; that the witness who so testified was mistaken. We certainly think he was entitled to make such proof if he could.

In support of the conviction in this case the assistant Attorney-General cites us to the case of Owens v. State. That case does not decide the precise question presented here, that is, as to whether or not the mere taking from its place, and immediately replacing, a pistol, will constitute, within the meaning of the law, the having or carrying the same about the person. The question was not involved in the Owens' Case. That case, however, determined one question in this case, which is, that no person, unless he be a peace officer, can go into a social gathering and have or carry about his person a pistol, without being guilty of violating the law. Not even the owner of the premises where the social gathering occurs is exempt from the prohibition of the article of the Penal Code before referred to. Therefore, even if it were proved that the de. fendant was in charge of the candy stand, and had a perfect legal right to be in the house, and for the time being was the legal owner of that portion of the house, this would not entitle him to have and carry about his person a pistol.

Because we are of opinion that the court erred in rejecting the evidence offered by the defendant to show that he did not have and carry about his person the pistol, in a manner that would be a violation of law, the judgment is reversed and the cause is remanded.

Reversed and remanded.

§ 169. - Must be Carried as a Weapon. - In Carr v. State, the defendant carried two pistols on his person, both unloaded, and one without a tube. It was held that this was not within the phrase, "wear any pistoi concealed as

13 Tex. (App.) 404.

2 34 Ark. 448 (1879).

a weapon." "It will be perceived," said EAKIN, J., "there are three essential elements in the offense. The implement must be worn, that is, placed about the person and carried around in some way, to be at all times accessible. If it is merely and in good faith being transported to be repaired or given to another, or for purposes of trade, or any other object save to be used in fight it can not be said to be worn. It must be concealed; that is, so hidden from general view as to put others off their guard, and lastly it must be carried as a weapon, that is for the purpose of having it convenient for use in fight. In this case the implements found on defendant were pistols and worn concealed. But they were not either of them loaded, and one was wholly unfit for use, if it had been. These things affirmatively shown rebut the presumption that the pistols were worn to be used as weapons. They could not be so used."

Therefore, a person who finds a pistol on the street, picks it up and carries it to his house is not guilty.1

§ 170. "Pistol"-Weapon Must be Perfect. In Evins v. State, 2 the pistol the defendant carried had no mainspring or necessary parts of a lock, and could only be fired by the use of a match. This was held not a pistol within the statute. "A pistol," said the court, "to be within the purview and meaning of the statute and the mischief and evil intended to be prevented must have such a degree of perfectness as that it may reasonably be carried and used as a weapon. It is not enough that it has a stock and a barrel that may be loaded and fired off by a match or in some other such way. This was clearly not the character and condition of this pistol. It was certainly worthless as a weapon and no sensible person would have relied on it as a weapon to attack an adversary or to defend himself."

So a pistol without a cylinder is not a concealed " weapon.'

§ 171. "Traveler" Construed. —A person "traveling" is as a rule excepted from the penalties of the statutes, and the word has been construed in a number of cases.4

The exception to one "traveling" commences when he sets out on his journey and continues until he reaches home on his return.5

§ 172. Traveling"-Length of Journey not Material. - In Lockett v. State, the defendant relied on the exception in the statute as to persons traveling. It appeared that he was a passenger on a train to a place twenty-eight miles distant for the purpose of seeking employment. It was held that he was "traveling." Said the court: "On the evidence the defendant moved the court to give a written charge to the jury in the following language: 'That if they believe from the evidence that the defendant was engaged in traveling, and was on the cars as a passenger from Selma to Marion, a distance of twenty-eight miles that then he had a right to carry concealed weapons, and that they must find the defendant not guilty.' This charge was refused, and the defendant excepted. I think this was a proper charge under the evidence, and should

1 Mangum v. State, 15 Tex. (App.) 363 (1884.)

2 46 Ala. 88 (1871).

3 Cook v. State, 11 Tex. (App.) 19 (1881). As to what is not a "bowie knife," see Sears v. State, 33 Ala. 347 (1859).

See Rice v. State, 10 Tex. (App.) 288 (1881); Baker v. State, 49 Ala. 350 (1873); Smith v. State, 42 Tex. 464 (1875).

6 Coker v. State, 63 Ala. 95 (1879).

47 Ala. 42 (1872).

have been given. The word 'traveling' has no very precise or technical meaning when it is used without any limitation. Its primary and general import is to pass from place to place, whether for pleasure, instruction, business or health. A person may travel to seek employment as well as to seek amusement, information or health. The length of the journey or its continuance does not destroy the character of the occupation. The proofs in this case do not make it certain that the defendant may not have been engaged in an honest journey to a neighboring town to procure employment in his trade. He might have done the same thing, by a trip to California or Mexico. In the latter case, to be caught with pistols concealed about his person would be no crime. And there is no very clear reason why a different interpretation should be placed on his conduct in the two cases, because the journey was shorter in the one case than it was in the other, when his purpose in both cases was to seek employment in his occupation. Nor is it required that he should have any necessity for the use of his pistols. It is enough if he was traveling on a journey, long or short. This is the language of the statute above cited."

§ 173. "Threatened". - It is Not Necessary that the Threat be Recent. not necessary to justify the carrying of concealed weapons by one "threatened" that the threat be recent. In Polk v. State, 2 the court say: The Circuit Court erred in excluding evidence of the alleged previous threat made by Joe, son of David Jones. Its tendency was, if believed, to prove that the defendant had been threatened with an attack, and thus to make out the defence relied on. If the answer had furnished what the question sought to elicit, it would have shown, if believed, that about one week before the accused was seen to conceal a pistol about his person, Joe had attempted to shoot him with a gun; and on being prevented, had threatened defendant that he would shoot him whenever he caught him out. This would clearly constitute a threat; and unless something in the manner of its utterance showed it was not intended to be executed; or unless Joe's after conduct made it manifest that passion had subsided, and with it, the purpose to carry the threat into execution, the jury would be justified in finding the defendant stood excused for carrying the pistol concealed about his person. The real transaction, the real purpose, or what seemed to be the real purpose of the person making the threat or hostile demonstration, and the real, not feigned, sense of insecurity or peril under which the threatened party labored when he carried the concealed weapon, are questions for inquiry by the jury. A recent threat should weigh much more with the jury, than one of older date. So if after a threat made in anger, the parties become reconciled, or being together, the threat is neither executed, nor attempted to be executed, when, if the intention still existed, it could be carried into effect, then, it could not be predicated that the accused had been threatened with, or had good reason to apprehend an attack in the meaning of the law. The excuse rests on the idea of self-defence, not aggression. Still the threat may be given in evidence, but it should weigh nothing with the jury, if under the rules given above, it is shown to be a mere pretext rather than the true reason for carrying the concealed weapon. It is not every idle threat that will excuse the carrying a weapon concealed about the person; nor will a threat

1 Webster's Dict. Unabridged, Roget's Thesauris of English Words, p. 109, word,

TRAVEL.

2 62 Ala. 239 (1878). And as to the mean. ing of "threatened" see Tipler v. State, 57 Miss. 685 (1880).

long made, and not attempted to be executed when it might have been, furnish such excuse. Precautionary defence against impending peril, is what the statute intended to authorize. We think what we have stated above is, in substance, the import of the language employed in Baker v. State.1 Being threatened with an attack, or impending threat, implies only that a threat must have been made, and stand uncancelled by after reconciliation, or other evidence of its abandonment. It does not mean that, to excuse the carrying of a weapon concealed about the person, the threat must be then and there presently uttered. This, in most cases, would deny to it all value as a defensive precaution.

§ 173a. Carrying Concealed Weapon- Mistake - Absence of Intent.— In State v. Gilbert,' the jury returned a special verdict that the defendant, a merchant, while in the streets of Asheville, had upon his person a pistol which he had bought merely as a sample, and which he was carrying in bis pocket from the store where he bought it to another near by to have it packed with other goods. It was held that the defendant was not guilty, RUFFIN, J., saying: “This court can not but think that it was paying too great a regard to the letter of the law, and too little to its spirit, to hold the defendant to be guilty after such a verdict as was rendered in this case.

"The offense with which he is charged forms no exception to the general rule, that to constitute a crime there must be a criminal intent, and we can perceive no good reason why it should do so.

"The statute declares that the having of a deadly weapon upon one's person shall be prima facie evidence of its concealment, and this of itself seems necessarily to imply that it may be done under such circumstances as will not amount to an offense. If not so, and the presumption arising from the possession of a weapon be irrebutable, why declare it to be prima facie only? To conceal a weapon means something more than the mere act of having it where it may not be seen. It implies an assent of the mind and a purpose to so carry it, that it may not be seen. It is true, it will always be presumed to be a man's intention to do what in fact he does, and that he must contemplate the natural consequences of his conduct. But when the jury expressly find the contrary, and that notwithstanding the act done, there was no criminal intention connected with it, that must put an end to the prosecution. In this instance, their only other meaning could have been that the act proceeded from accident or inattention, or some such like cause. And to hold that a merchant, who having just purchased a pistol with a view to his trade, and in carrying it from one store in a town to another, for the purpose of having it packed with other goods, thoughtlessly puts it in his pocket, not caring and not thinking whether it could be seen or not, is guilty of a criminal violation of the laws of his country, is more, we think than was ever contemplated by those who framed the law upon this subject, and very certainly seems far removed from the mischief that it was intended to remedy. The law is a wholesome one, and its constant enforcement according to its true spirit and intention, meets the desires and expectations of every well disposed and peaceable citizen; but some care should be used lest by pushing its requirements too far, it may result in a reaction of sentiment against it. Our opinion is that the defendant was entitled upon the terms of the special verdict to be discharged, and it is so ordered, and to that end this will be certifiled. Judgment reversed."

1 49 Ala. 350.

2 87 N. C. 527 (1882).

$174.

Officers Excepted-The statute also excepts "officers" from the penalties. An under officer in a penetentiary is a "civil officer, engaged in the discharge of official duties." And a "de facto" marshal of a town is a "peace officer." 2

$ 175. nals"

"Officer Engaged in Execution of Process or Arrest of CrimiPerson Bona Fide aiding Officer. This exemption has been liberally construed. In Brewer v. State,3 the defendant, a justice of the peace, came into town fifteen miles in charge of a prisoner and after he had delivered the prisoner to the jailor, he remained four hours in the city awaiting the train to take him home. It was held that he was entitled to carry a pistol during that time. "Was the defendant," said the court, "bona fide aiding the officers of the law or others in turning a criminal over to the proper authorities after arrest? The defendant being a magistrate was a peace officer and it was his duty to execute the law and in certain cases, not necessary to mention here, it might be his duty to arrest or assist in the arrest of offenders. But we understand this to have been a case where the prisoner had been committed to jail, or was to be placed in jail, how or in what manner does not appear whether by order of a committing magistrate, or under a capias or other process from court, is not shown. We should presume, however, that the former was the case; and in this event, a magistrate is not the officer charged by law with the duty of guarding the prisoner to jail. But we can not say that the fact of his being a magistrate precludes the possibility of his having been lawfully and in good faith assisting the officer of the law in turning the prisoner over to the jailor. Cases might exist where this was not only lawful but proper. The only statement we have is, that he came from his district to Mem. phis, a distance of fifteen miles, in charge of a prisoner charged with a public offense, to deliver him to the jailor. By whom he was summoned to discharge this duty, or whether it was voluntarily assumed, does not appear. As we see nothing unlawful in the discharge of this duty by the defendant, and he being in charge of the prisoner, we must take it that in bringing the prisoner to the city and turning him over to the jailor, he was bona fide acting as an officer, or assisting the officer of the law in the discharge of that duty, and therefore directly within the exception of the law above quoted.

"The question, then is, does the fact that he carried the pistol in the city for a few hours after he turned the prisoner over to the jailor and before the return train started on his way home make him guilty? If he might lawfully carry the pistol as he came to town, he could certainly carry it back home. He might, it is true, have taken off the pistol and deposited it in some place during his stay in the city, but as he remained only three or four hours, we think it would be a hard construction to convict him for carrying it during this time.

"Upon the whole, we think the judgment should be reversed and the defendant discharged."

§ 176.

- Other Cases not within Statute. — Under a statute prohibiting the carrying of weapons except on one's premises or in travelling with baggage

1 Carmichael v. State, 11 Tex. (App.) 27 (1881).

2 Rainey v. State, 8 Tex. (App.) 62 (1880). 3 6 Baxt. 446 (1873).