
    WORTHAM v. STATE.
    (No. 7756.)
    (Court of Criminal Appeals of Texas.
    May 30, 1923.
    Rehearing Granted June 20, 1923.)
    I.Criminal law <§=»I092(9) — Bills of exception filed after expiration of time not considered.
    Where the time granted for filing bills of exception had expired, an order made after the expiration extending the time for filing was without authority, and bills filed pfter the expiration cannot be considered on appeal.
    2. Weapons <&wkey;l7(4) — Evidence held sufficient to support conviction for carrying pistol.
    In a prosecution for carrying a pistol, evidence that the officers searching accused’s car. found a pistol in the front seat, in which the accused and his wife were sitting, held sufficient to support a conviction.
    3. Weapons <&wkey;Hl I (2) —• No defense to charge of carrying pistol that accused was a traveler going to point 35 miles distant in another county.
    In a prosecution for carrying a pistol, the fact that the accused was going from a point in one county to a point 35 miles distant in another county did .not entitle him to exemption from the law as a traveler.
    On Motion for Rehearing.
    4. Criminal law &wkey;>369'(2) — Admission of evidence that one accused of possession of pistol was carrying whisky held error.
    In a prosecution for carrying a pistol, defended on the ground that the accused was a traveler, admission of evidence that, in searching the car in which the accused was riding and in which the pistol was found, the officers found whisky, to rebut accused’s claim that he was a traveler, was error; possession of the whisky being a felony, and proof thereof not being necessary to develop the res ges-te or to show accused’s guilt of carrying a pistol.
    5. Weapons &wkey;>l7(6) — Refusal of charge that, if pistol which person was accused of carrying belonged to another, not to convict, held error.
    In a prosecution for carrying a pistol, in which defendant testified that the ear in which the accused was riding and the pistol which was found therein belonged to another, and that the accused knew nothing about the pistol, refusal to charge that, if the automobile and pistol belonged to another, and if the accused did not assume control or possession of the pistol, he could not be convicted, was error.
    Appeal from Navarro County Court; A. P. Mays, Judge.
    J. L. Wortham was convicted of carrying a pistol, and he appeals.
    Reversed and remanded.
    Gibson & Lovett, of Corsicana, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Navarro county for carrying on and about his person a pistol,, and his punishment fixed at a fine of $100.

Our Assistant Attorney General moves to strike out appellant’s bills of exception for the reason that the time originally granted in which to file same expired prior to the' entry of an order extending the time for such filing. The order extending such time would therefore be without authority, and the bills of exception, appearing to have been filed after the expiration of the time, cannot be considered by us. Griffin v. State, 69 Tex. Cr. R. 424, 128 S. W. 1134; Sanders v. State, 60 Tex. Cr. R. 34, 129 S. W. 606; Palmer v. State, 92 Tex. Cr. R. 640, 245 S. W. 238; Harr v. State (No. 7199) 254 S. W. -, opinion handed down May 23, 1923.

The only question remaining is the sufficiency of the evidence to support the conviction. Appellant and his wife and some other parties were in a car, the said other parties being in the back seat and appellant and his wife in the front seat. A pistol was found in the front seat by officers who searched the car. It was handed to them by appellant. This would seem to justify the conclusion that the pistol was then in the possession of and being carried by appellant. The only justification offered for such action was "upon the theory that appellant was going from a place in Freestone county to another point in Navarro county about 35 miles distant, and that consequently he was a traveler. This question was discussed and settled adversely to the contention of appellant in the case of George v. State, 90 Tex. Cr. R. 179, 234 S. W. 87, to which reference is made for a review of the authorities.

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

On Motion for Rehearing.

In support of his motion for rehearing and in connection therewith appellant files a corrected transcript of the orders of the trial court in extending the time for filing bills of exception and statement of facts, properly certified to by the clerk of the trial court. Therefrom it is made to appear that two errors in the dates of such orders were here presented in the original transcript. Such carelessness on the part of officials is inexcusable. It is now shown that the order extending the time for filing statement of facts and bills of exception which appeared in the original transcript as of January 30th should have been January 20th, and that the extension appearing in the original transcript as February 17th should be February 15th. Had the original transcript shown that an order was made by the trial court on January 20th extending the trial for filing such documents, we would not have held them filed too late, but would have considered them. Accepting the correctness of the transcript now filed and certified to, we consider the bills of exception.

We do not think the charges of the court relating to the question of appellant being a traveler present any merit. Of course one who sets out upon a bona fide journey of such length as to entitle him to be called a traveler occupies that attitude toward the law forbidding the carrying of a pistol from the inception of his journey, but; as decided by us in the case of George v. State, referred to in the original opinion, ordinarily one who merely goes from a definite point in one county to a definite point in an adjoining county a few miles away, which generally can be accomplished in an hour or an hour and a half, is not entitled to the protection accorded to a traveler under the pistol carrying law. This being true, the refusal of the Special charges of the appellant presenting phases of this defense would not be error.

There seems in our minds no question of the fact that it was error for the learned trial judge to admit in evidence the fact that in the car occupied by appellant and his party was found a large quantity of whisky. It is stated by the court in qualifying the bill of exceptions complaining of this that it was admitted to rebut the claim of appellant that he was a traveler. We are unable to perceive how the proposition of having in his car a quantity of liquor could properly affect the question as to whether one was a traveler or not. Such possession under our statute is' a felony, and this record presents the proposition 'that one on trial for carrying a pistol has introduced against him the commission of a felony, which proof was not necessary in order to develop the res gestss, or to show; whether or not he was guilty of carrying a pistol.

There is a bill of exceptions complaining of the refusal of the following special charge:

“Gentlemen of the jury, As a part of the law of this case you are instructed that, even if you should believe from the evidence that about the time that the defendant was arrested he was in an automobile belonging to one Demming, and that in said automobile there was a pistol which belonged to said Demming, yet, under such facts and circumstances, if the defendant merely knew that said pistol was in said automobile, and did not at any time assume control over the same or possession of the same, you cannot convict him in this case.”

The trial court refused to give said charge in form as above set out, save in case the appellant would agree to add thereto the following:

“Unless you believe the defendant was acting with Demming in having the pistol in his possession, if he did.”

The appellant testified that the automobile and pistol both belonged to E. Demming, and that he had nothing to do with either the automobile or the pistol; that he never had the pistol about his person and did not know that it was in the automobile. He further testified that on the occasion mentioned he was driving the car at the request of Mr. Demming, who could not drive same. We find nothing in the record justifying the learned trial judge in refusing to give the special charge asked. If the pistol in fact belonged to Demming, and appellant at no time had possession of same, or assumed control over it, hq would not be guilty of a violation of the law. This special charge attempted to present practically the only defense, aside from that of being a traveler, which was asserted by appellant, and in our opinion its refusal with the error of the admission of Testimony above referred to, necessitates a reversal of the case.

The motion for rehearing is granted, the affirmance set aside, and the. judgment now reversed, and the cause remanded. 
      
       Rehearing pending.
     