
    GEORGE v. STATE.
    (No. 6356.)
    (Court of Criminal Appeals of Texas.
    Oct. 19, 1921.)
    1. Weapons <&wkey;>!7(4) — Evidence held to sus-taih conviction for carrying pistol.
    Evidence held to sustain conviction of defendant for carrying a pistol on or about his person.
    2. Criminal law <&wkey;553 — Jury or trial court vested with matter of reconciling conflicts in testimony.
    The trial jury or court is vested with the matter of reconciling conflicts in the testimony, or accepting such as they believe true and rejecting the other.
    3. Criminal law <&wkey;l 159(2) — Verdict upheld unless manifestly unsupported by evidence.
    A verdict will be upheld on appeal unless manifestly unsupported by the evidence.
    4. Weapons <&wkey;!7(5) — Whether defendant was a traveler question for jury or trial court.
    In a prosecution of defendant for carrying a pistol on or about his person, the question whether defendant was a traveler is one of fact for the trial court or the jury.
    5. Weapons &wkey;»l I (2) — Driver of automobile to oity 40 miles distant and back on same day held not a “traveler.”
    One who drove ian automobile to a city 40 miles distant and back on the same day in broad daylight held not a “traveler” within statute permitting a traveler to carry a pistol on or about his person.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Traveler-on Highway.]
    
      Appeal from Williamson County Court; F. D. Rove, Judge.
    Paul George was convicted of carrying a pistol on or about bis person, and be appeals.
    Affirmed.
    W. O. Wofford and Rube Mankin, both of Taylor, for appellant.
    Dan Moody, Co. Atty., of Taylor, and R. H. Hamilton, Asst. Atty. Gen., for tbe State.
   RATTXMORE, J.

Appellant was convicted in tbe county court of Williamson county of tbe offense of carrying on or about bis person a certain pistol, and bis punishment fixed at a fine of $100.

Tbe case was tried before tbe court without the intervention of a jury. But two questions are raised: Did appellant have tbe pistol on or about bis person? Was he a traveler? Tbe state’s testimony makes an affirmative answer to tbe first question. Tbe constable testified that be went to appellant’s home to serve some papers on him. He was not there, but the mother of appellant informed the offiicer that appellant told her he would be home about 5 or 6 o’clock that evening; so tbe officer waited, and in a little while appellant drove up in a car. Tbe officer further stated that be went to said automobile, and “defendant got out of same with bis overcoat, and be asked defendant for his overcoat, and defendant handed same to him, and that be searched said overcoat and found a pistol in the pocket of same.”

Appellant testified that be left home that morning in a 'Ford touring car, and before be left be put said pistol in bis overcoat pocket and placed both tbe pistol and overcoat under the cushion of tbe rear seat of said car; drove to Austin and back that day without at any time touching or handling said pistol from tbe time be left home until bis arrival at tbe time testified to by tbe constable. He also said that when he reached home at the time in question tbe officer came out, looked under tbe front seat of tbe car, and searched same; then looked under tbe rear seat, took said overcoat out, and banded it to appellant’s mother; then took it from her, searched it, and found tbe pistol in question. These were the only two witnesses. No reason appears why tbe mother of appellant was not used by him to corroborate and substantiate bis testimony, if true, and we think tbe officer’s testimony clearly makes out a violation of the law.

Tbe trial jury or court is vested with tbe matter of reconciling conflicts in the testimony, or accepting such as they believe true and rejecting tbe other, and, unless it appear that tbe verdict is manifestly unsupported by tbe evidence, it is our duty to uphold same. In 1;he Sanders Case, 20 S. W. 556, this court, through Judge Davidson, said:

“The state made out a prima facie case of guilt against the defendant, and, in order to avoid the conviction, it devolved upon him to establish facts or circumstances to excuse or justify the prohibited act. While the question of intent or honesty of purpose, in a proper case, may excuse or justify carrying a pistol, yet such matters cannot be simulated for the purpose of evading or violating the law. Stilly v. State, 27 Tex. App. 445, 11 S. W. 458; Impson v. State (Tex. App.) 19 S. W. 677. ‘If the defense is an honest one, and supported by the facts, and there is no evidence tending to impeach it, the jury should acquit, and under such circumstances, if a conviction be secured, it should not be permitted to stand.’ Impson v. State (Tex. App.) 19 S. W. 677. On the contrary, if such is not the ease, and the defense is not an honest one, or the facts impeach it, or tend to do so, and the jury convict, this court will not disturb the conviction. To our minds the testimony fully sustains the conviction, wherefore the judgment is affirmed. Judges all present and concurring.”

Tbe officer and appellant squarely contradict eacb other as to whether appellant bad the overcoat when be got out of tbe car. Appellant bad it in bis power to have shown by bis mother that tbe officer was wrong. He did not choose to do so, or show any reason why be did not.

Was appellant a traveler? Tbe trial court concluded that be was not. This question is one of fact for tbe trial court or jury, as tbe case may be. Impson v. State, 19 S. W. 677; Shelton v. State, 27 Tex. App. 443, 11 S. W. 457, 11 Am. St. Rep. 200; Williams v. State, 74 Tex., Cr. R. 639, 169 S. W. 1154; Witt v. State, 231 S. W. 395, We are aware that the decisions of this state are in a condition of hopeless confusion as to when a man is or is not a traveler; the earlier cases tending in tbe direction of greater, and those of later years of less, latitude of construction. We have examined all tbe authorities cited by appellant and many others, and have found no case bolding in substance that a man who goes a distance which can be covered in two hours, in tbe broad daylight, along a road where be was probably nerver out of sight of a number of bouses, is held to be a traveler. We have found no case where a man is held a traveler whose absence was for less than a day. Many of .the earlier decisions are based on journeys comparatively short in distance, but necessarily consuming some time by reason of the less expeditious modes of travel. Some cases bold that going from one county to another would make one a traveler, but later cases demonstrate the fallacy of such bolding. Still other cases appear in which this court, as a matter of law, attempts to say when one is and when one is not a traveler, and it is earnestly urged by Judge Henderson in the Bain Case, 38 Tex. Cr. R. 635, 44 S. W. 518, that tbe Regisla-ture should make a statutory definition of the term under discussion.

In the instant case appellant claimed that when he left home in the morning he intended going to Austin and there getting some woman and going on to San Antonio, returning the nest day. The distance he intended to go is not stated in the record. Appellant’s friend, whose statement appears in the record as having seen him in Austin and gone with him to various places in search of two women, says nothing about any intent or plan to go to San Antonio. Appellant’s mother told the officer who went to the house looking for him that he told her he would be home at 5 or 6 o’clock that evening. From the statement of facts it appears that Austin and Taylor are about 40 miles apart, and that it took about two hours each way to make the trip. The trial court held appellant not a traveler under the facts, and we are unwilling to hold that this conclusion was without support, and that one who only went a two hours’ drive was a traveler. We do not believe one going with a crowd on an excursion and coming back the same day, though going a greater distance than did appellant, could buckle on a pistol and hide himself from prosecution by claiming he was a traveler as a matter of law. “Témpora mutantur et nos mu-ta mur.” A man going in an ox wagon 20 miles and having to camp out at night may have been held a traveler in times past, but it would certainly license pistol carrying with all its train of evils to hold in these days of swiftly moving automobiles which throng every road and carry their passengers the distance last mentioned, if desired, in a half hour, that persons are to be held travelers as a matter of law, on authority of such precedents. We do not believe that appellant has discharged the burden fixed on him by all of our courts of showing himself to be a traveler, and, so believing, the judgment will be affirmed. 
      igsaPor other oases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes
     