
    TAYLOR v. STATE.
    (No. 3670.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Weapons &wkey;17 — Criminal Prosecutions —Sufficiency op Evidence.
    On a trial for unlawfully carrying a pistol, evidence on the whole case and on the issue as to whether defendant was a traveler held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. &wkey;17.]
    2. Criminal Law <&wkey;1159 — Appeaí>-Review —Questions oe Fact.
    Where the evidence was sufficient to sustain the verdict, whether defendant or the witnesses for the state were to be believed was a matter for the jury and the trial court alone.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <&wkey; 1159.]
    3. Criminal Law <&wkey;1038 — Appeal—Reservation of Grounds of Review — Instructions.
    No error with respect to the refusal of requested charges was shown, where the transcript failed to show that defendant excepted to the charge and requested the submission of his special charges before the charge was read to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646;. Dec. Dig. &wkey;rt038.]
    4. Weapons <&wkey;17 — Criminal Prosecutions —Instructions—‘ ‘Traveler. ’ ’
    On a trial for unlawfully carrying a pistol, an instruction that a “traveler” was a person making a trip from one county to another, and away from his home, with the intention of being aw.ay on some business or journey out of his ordinary pursuit, and that a mere incidental delay connected with his journey did not prevent him from being a traveler within the law, did not correctly state the law and was properly refused.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. &wkey;17.]
    5. Criminal Law <&wkey;1099 — Appeal—Record —Matters Presented for Review.
    In a motion for new trial in a criminal case, defendant attacked the verdict on account of the action of the jury de hors the record and for alleged improner argument of the county attorney, and also for newly discovered evidence. All of these matters were specially contested and controverted by the county attorney, and the court heard evidence thereon, but this evidence was not shown by the record. Defendant’s bills of exceptions were filed long after the adjournment of the court. Held, that such matters were not so presented as to be reviewable, since, in order to be reviewed, such matters must be presented by a proper statement of facts, filed during term time, showing what the testimony was.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <&wkey; 1099.]
    6. Criminal Law <&wkey;1092 — Bills of Exception — Allowance.
    Where. no exception was taken at the time to alleged improper remarks of the county attorney and the matter was not called to the judge’s .attention until two weeks after the trial, and then by a motion for a new trial, and the county attorney contested the matter and specially denied using the language charged, the judge properly refused to allow a Kill of exceptions to such remarks.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. <i&wkey;1092.]
    Appeal from Coryell County Court; H. E. Bell, Judge.
    W, O. Taylor was convicted of unlawfully carrying a pistol, and be appeals.
    Affirmed.
    Watt L. Saunders, of Gatesville, for appellant. C. C. McDonald, Asst. Atty. Gen., for tbe State.
   PRENDERGAST, P. J.

Appellant was indicted and upon trial convicted for unlawfully carrying a pistol. Tbe lowest punishment was assessed.

He claimed and testified: That be lived at Waco, in McLennan county, and owned a farm in Coryell county, which he looked after. That on October 13, 1914, be went from Waco to bis farm to attend to various matters of business there, carrying with him in bis grip the large dark-bandied Colts 45 pistol which his brother-in-law bad requested him to bring to him. That at no time during this trip did be carry it on his person. After arriving in Coryell county, he stayed all night with Mr. Rubarth. The next morning he went to Mr. Moore’s to see him about bis rent and other things, which be did, and there, that morning, took the pistol out of bis 'grip, put it in Moore’s buggy, told Moore about it, and requested him to deliver it.to bis brother-in-law, which was shown to have been done. That be neither saw nor bad that pistol again. That is not tbe pistol lie is charged witii carrying. That day, and the following, he is shown, and admits, to having gone around to various places in the neighborhood to see various persons and attended to various matters of business. That day, among other places, he went to another brother-in-law’s, Olyce Parsons,’ to see him about business matters. That Olyce was not then at home, but his wife was. She invited him, and he went into her house, sat down, talked to her about his troubles, and wanted to see her husband about some business matters, and also phoned while he was there. She testified she passed behind him while he was sitting, and his back was to her while he was phoning, and she saw his pistol scabbard sticking out underneath his coat and the shape of a pistol under his coat; that his coat was pulled up tight when he was phoning; that she smelled whisky on his breath, and she said, “he tried to get close to me and acted like he was drunk.” After leaving Olyce Parsons,’ the next day he went around to various other places seeing different persons about matters of business, and in his rounds shortly before he took a mail hack, and went into Olyce Parsons’ field where Olyce was at work to see him about some business matter. While there Olyce told him he did not want him to come to his house drunk any more, scaring his wife, and that his wife thought he had a gun on at the time. That he (appellant) pulled back his coat, and the witness swore, “I saw the white handle of a pistol. * * * It was small.” Again: “Yes, I saw him with a pistol on. He pulled back his coat, and I saw it. It was in his hip pocket.” Appellant had his grip with him at this time. After talking to Olyce in his field a few minutes, the witness told him the mail hack from Purmela to Levita was coming over the hill, and appellant went and caught it. Appellant swore he had no pistol on the day before when at Mr. Parsons’ house, nor in Parsons’ field when Parsons swore he did, saw it, etc.

The evidence was clearly sufficient to sustain the verdict on the whole case and also on the issue of his claim that he was a traveler at the time he carried the pistol. The jury believed the state’s witness, and did not believe appellant. This was for the jury alone and the lower court.

The judge gave a charge correctly submitting every issue made by the evidence. Appellant made no objection whatever to the charge at the time. He, however, requested two special charges which the court refused; but, as said by this court in the recent case of Younger v. State, 173 S. W. 1040:

“The transcript fails to show that appellant excepted to the court’s charge before being read to the jury and a request at that time for the submission of his special charges.”

Hence, as presented, no error is shown. However, his first, on the issue of his carrying said pistol to his brother-in-law, was clearly on the weight of the evidence, and about a different pistol from that which he was charged with carrying. Besides, the court, in first telling the jury the law, correctly charged that:

“It is not a violation of the law to merely carry a pistol on one’s way to deliver same to its owner.”

And in submitting the case for a finding told them, if they believed beyond a reasonable doubt he carried the pistol at the time and place alleged, to find him guilty, unless he was at the time carrying it on his way to deliver it to its owner. And again affirmatively submitted this issue in his favor telling the jury, if you-believe he was merely on his way to deliver the pistol to its owner, acquit him and find him not guilty.

In his second special charge he requested the court to tell the jury that a traveler “is a person making a trip from one county to another, and away from his home with the intention of being away on some business or journey out of his ordinary pursuit, and that a mere incidental delay connected with his journey does not prevent him from being a traveler in the meaning of the law.” This is not the law. Williams v. State, 169 S. W. 1154; Younger v. State, supra. Besides, the court gave a correct charge on the subject and submitted that issue in the same way as the above question of carrying the pistol to its owner was submitted.

Appellant’s application for a continuance was wholly insufficient, under the -statute, showed a clear lack of diligence, and, besides, the evidence of the witness was wholly immaterial to any issue in the case.

The court’s charge more than once told the jury that the burden of proof was upon the state to prove appellant guilty beyond a reasonable doubt before they could convict him. It is not susceptible of the construction that it required him to establish either of his defenses beyond a reasonable doubt. The reverse of this is true.

In his amended motion for a new trial he urged some grounds attacking the verdict on account of the action of the jury de hors the record; also, on the ground of claimed improper argument of the county attorney; and also for what he claimed was newly discovered evidence. All of these, matters, as well as every other ground of his motion and bills of exceptions, were specially contested and controverted by the county attorney in his sworn plea in answer thereto. The record shows that when the court heard his said motion, and the contest thereof, he heard evidence thereon. What that evidence was, whether by affidavit or oral testimony, or both, is not shown by the record. All his bills of exceptions were filed long after the adjournment of the court. Under such eir-cumstances, none of these matter's are presented in such a way that we can review them. It has been the uniform holding of this court at all times, in a long line of de-

eisions, that such matters, in order to be reviewed by this court, must he presented by a proper statement of facts on the subject, filed during term time, showing what the testimony was. One of the leading cases is Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, and some of the others are collated in Graham v. State, 73 Tex. Cr. R. 28, 163 S. W. 730.

There was certainly no error in the judge refusing to allow appellant a bill of exceptions to the claimed remarks of the county attorney when it was conclusively shown that no exception was taken thereto at the time. The matter was not called to the judge’s attention until two weeks after the trial, and then by his amended motion for new trial. As stated, the county attorney contested this matter, and specially denied he used the language charged.

We have not discussed separately each of appellant’s many assignments, though we have considered all of them. No error is pointed out that would authorize or require this court to reverse this case.

The judgment is affirmed. 
      <g=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     