
    PAULK v. STATE.
    (No. 7903.)
    (Court of Criminal Appeals of Texas.
    May 7, 1924.)
    1. Criminal law <§p»970(9) — Defect in form of Indictment held not to warrant motion in arrest of judgment.
    Indictment charging offense committed on; June 9, 1922, purporting to have been returned by grand jury at “September term, A. D. 192,” held, under Vernon’s Ann. Code Cr. Proc. 1916, arts. 476, 598, not subject to motion in arrest of judgment because of such defect.
    2. Weapons <&wkey;l 7(5) — Driver of service ear held not “traveler.”
    Driver of a service car, employed to take other parties distance of about 37 miles, who alleged he was told it might be necessary for him to go considerable further before returning, held not. as a matter of law a “traveler,” within statute relating to unlawful carrying of pistol.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Traveler on Highway.]
    3. Weapons <&wkey;>IO — Possession of pistol in auto held sufficient carrying “on or about person” to sustain conviction.
    The possession by the driver of a service ear of a pistol, found pushed between the seat of the car and the back of the cushion immediately behind the steering wheel, held a sufficient carrying “on or about the person” to sustain conviction.
    <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    J. W. Paulk was convicted of unlawfully carrying a pistol, and be appeals.
    Affirmed.
    Sid Crumpton, of Texarkana, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of' Austin, for the State.
   HAWKINS, J.

Conviction is for unlawfully carrying a pistol, with punishment assessed at a fine of $100.

The indictment purported to have been returned by a grand jury organized for Cass county at the “September term; A. D. 192.” It alleges the offense to have been committed on the 9th day of June, 1922. The record shows the filing of the indictment to have been on September 7, 1922. No motion to quash was made, but a motion in arrest of judgment because of this defect in form of the indictment was presented and overruled. The action of the court was not erroneous. See articles 476 and 598, Vernon’s C. C. P.; Grayson v. State, 35 Tex. Cr. R. 629, 34 S. W. 961; Fagnani v. State, 66 Tex. Cr. R. 291, 146 S. W. 542; Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174; Finch v. State, 89 Tex. Cr. R. 363, 232 S. W. 528.

Appellant lived in the city of Texarkana and was the driver of a service car. He was employed about 10 o’clock at night to take some parties in his car from Texarkana in Bowie county to Linden in Cass county, to secure the release upon bond of a party then held in jail in the latter place. They reached Linden about 3 o’clock in the morning. The sheriff declined to approve the bond presented because it had not been properly certified by officers of Bowie county. He advised the párties to return to Atlanta and have the bond properly certified to by the justice of the peace at that point, and then have the justice of the peace telephone the sheriff at Linden of such certificate, and he would then release the party from jail. Appellant reached Atlanta about 5 or 6 o’clock in the morning. While he was away from his car officers discovered a pistol pushed down between the cushion and the back of the seat of the car. The pistol belonged to appellant. It is 29 miles from Texarkana to Atlanta and 16 miles further to Linden.

The case was tried before the district judge without the aid of a jury, and a conviction resulted. Appellant testified that Davis, one of the men who hired him to make the trip from Texarkana to Linden, told him it might be necessary for them to go on to Shreveport before returning to Texarkana. This statement was not substantiated by Davis. He was not used as. a witness. The other facts in the case do not apparently support this contention. It is contended by appellant that the facts show he was a traveler. The Legislature Jias never seen proper to define a “traveler,” and it therefore becomes necessarily a question of fact to be determined where the issue arises by the judge or jury trying it. In the present case no jury was demanded, but the matter was submitted' to the district judge. He heard the evidence and saw the witnesses, and his finding reflects the fact that he did not accept as true appellant’s claim that he was a traveler. We think it would be going too far for us to hold as a matter of law that he was.

It is further contended that the facts show the pistol Was found pushed down between the seat of the car and the hack cushion immediately in the rear of the steering wheel which would not amount to carrying “on or about the person.” The authority of Wagner v. State, 80 Tex. Cr. R. 66, 188 S. W. 1001; Garrett v. State (Tex. Cr. App.) 25 S. W. 285; Mayfield v. State, 75 Tex. Cr. R. 103, 170 S. W. 308; Hill v. State, 50 Tex. Cr. R. 619, 100 S. W. 384; Roberson v. State, 88 Tex. Cr. R. 587, 228 S. W. 236; Leonard v. State, 56 Tex. Cr. R. 84, 119 S. W. 98; Emerson v. State, 80 Tex. Cr. R. 354, 190 S. W. 485, seem to have settled this proposition adversely to appellant’s contention.

The judgment is affirmed.  