
    PECHT v. STATE.
    (No. 4686.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.
    Rehearing Denied Dec. 19, 1917.)
    1. Weapons <@=>17(4) — Offenses—Evidence.
    In a prosecution of accused for unlawfully carrying a pistol on or about his person, evidence held sufficient to sustain a conviction.
    2. Weapons <@=>13 — Offenses—Defenses.
    One accused of unlawfully carrying a pistol on or about his person cannot excuse the charge on the ground of imminent danger, when he had no such apprehension at the time he armed himself.
    3. Criminal Daw <@=>656(2) — Conduct óf Judge — Admonition to Witness.
    In a prosecution for unlawfully carrying a pistol, where accused, who took the stand on his cross-examination, stated to the examiner that he wanted to be plainly understood and did not wish further examination like that before, an admonition by the court to answer the questions without other statement was not error.
    4. Weapons <@=>17 (5) — Offenses — Jury Question.
    In a prosecution for unlawfully carrying a pistol on or about his person, the question whether accused was at the time a traveler is for the jury.
    5. Weapons <@=>11(2) — Offenses.
    Where a traveler deflects and turns aside from his journey on business or pleasure disconnected with his journey, the fact that he was originally a traveler does not exempt him from punishment for unlawfully carrying a pistol on or about his person.
    6. Weapons <@=>17 (4) — Offenses — Jury Question.
    In an action for the unlawful carrying of a pistol on or about his person, evidence held to warrant a finding that accused was not at the time a traveler, and that, if he had been a traveler, he deflected from his journey so as to lose protection of his status as a traveler.
    Appeal from Williamson County Court; Richard Critz, Judge.
    B. F. Pecht was convicted of unlawfully carrying a pistol on or about his person, and he appeals.
    Affirmed.
    See, also, 192 S. W. 243.
    Dan Moody, of Taylor, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully carrying a pistol on or about his person. The testimony shows that on June 5, 1916, appellant took his trunk and went to Taylor, claiming that he was going from there to Ft. Worth, and perhaps beyond. After he got to Taylor he stored his trunk, and then in a wagon went from Taylor some 11 miles or more in the country. He visited different parties there, going from place to place, and reached a small village called Rice’s Crossing, where he stopped and gob something to eat. About the time he finished eating in the store, J. M. Kuykendall and Tom Avery reached there and went in to get a cold drink. Appellant- then raised a row with said Avery, cursing and abusing him and called him a liar. Kuykendall, Avery’s friend, told Avery he would not take such abuse and cursing, and to get an axe handle and strike him. Thereupon appellant and Kuykendall got into a row, and Kuykendall threw a soda water bottle at him. There were only three witnesses to all this: Kuy-kendall, Tom Avery, and Arthur Barton, the storekeeper. Kuykendall and Avery both swore positively that appellant then drew from his person a pistol, both swearing they saw it, and that he drew it from off his person, and was in the act of presenting it towards Kuykendall at the time. The storekeeper swore that Avery was between him and appellant at the time, and that, while he saw him make a motion as if to draw a weapon, he himself did not see the weapon, because Avery was between him and appellant. The storekeeper further swore that both Avery and Kuykendall said in appellant’s presence that he had a pistol, and Pecht did not deny it.

Pecht himself swore he had no pistol on that occasion or any other. He introduced several witnesses whoPecht himself swore he had no pistol on that occasion or any other. He introduced several witnesses who saw him at other places during the day, and their testimony was to the effect that they did not see any pistol on his person or him have a pistol when they saw him on these different occasions and at these different places other than at said store.

Without doubt the evidence was sufficient to sustain the conviction. Every issue that was raised or claimed to be raised by appellant was submitted by the court to the jury in his charge, to which charge there was no objection whatever.

The state ’at first only introduced Kuykendall, who, as stated, swore positively that appellant had a pistol on his person and drew it on him.

Thereupon the appellant had the jury-retired, and moved the court to instruct the jury to return a verdict of not guilty, claiming that the testimony showed that, if he had -a pistol, he had it in his own proper self-defense, as an attack was being made upon his person, and he claimed that the danger was pressing, and there was no immediate opportunity to have the aggressor placed under arrest, which motion the court correctly overruled.

The law is that an accused cannot justify carrying a pistol on the ground of imminent danger when he had no such apprehension at the time he armed himself. Darby v. State, 23 Tex. App. 407, 5 S. W. 90; Brownlee v. State, 35 Tex. Cr. R. 213, 32 S. W. 1043; Hood v. State, 72 S. W. 592; Thompson v. State, 48 Tex. Cr. R. 146, 86 S. W. 1033. The court, however, submitted this question to the jury for a finding in a charge to which he did not except, and the jury found against him.

Appellant testified in his own behalf. On cross-examination by the attorney for the state this occurred:

“Q. Did you see him at all from the fall prior to June 5th? A. Yes. You mean from the fall until June 5th? Q. Yes. A. No; I don’t know that I saw him. I passed his, place, but never stopped. Q. Huh? A. I passed his place, but I never stopped. Q. Never saw him? A. No, sir. Q. Now, when was the last time prior to last fall when you talked to him? A. This last fall a year ago, you mean? X want to be plainly understood. X don’t want you to do any more like you did before. Q. I don’t know how I did before, but I am going to do as I please about it this time. The Court: Mr. .Witness, you answer the questions that are asked without any other statement. Mr. Moody: Note the defendant’s exception to the remarks of the court. Q. When did you see him last prior to last fall a year ago and talk to him? A. And talk to him? I don’t know that I talked to him nary time between them times. (To which action of the court in so admonishing the said defendant, while a witness in his own behalf the defendant then and there in open court excepted.)”

This shows no reversible error.

Appellant contends that he was a traveler, and that on that account, even if he carried a pistol, as testified to by the state’s witnesses, he had the right to do so as a traveler. This question was also submitted by the court in Ms charge to the jury in every way favorable to appellant, and to which he in no way excepted. It has uniformly been held by this court, as stated by Mi-. Branch in his 1 Ann. P. O. § 976, that “whether or not a defendant is a person traveling is a question for the jury” citing Shelton v. State, 27 Tex. App. 443, 11 S. W. 457, 11 Am. St. Rep. 200, Campbell v. State, 58 Tex. Cr. R. 349, 125 S. W. 893, 21 Ann. Cas. 447, Williams v. State, 74 Tex. Cr. R. 639, 169 S. W. 1154, and Younger v. State, 76 Tex. Cr. R. 243, 173 S. W. 1039, and also that, even though he may be a traveler, where he deflects and turns aside from his journey on business or pleasure disconnected with his journey, the fact that he may be a traveler originally does not exempt Mm from punishment. 1 Branch’s Ann. P. C. § 977, where he collates a large number of casqs. The evidence would clearly justify the jury to find against appellant both that he was not a traveler at the time he carried the pistol on this occasion, but that, even if he was he so deflected from Ms journey on business or pleasure disconnected therewith so as to show that he was not entitled to acquittal on that ground.

The judgment is affirmed. 
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