
    WATERHOUSE v. STATE.
    (Court of Criminal Appeals of Texas.
    June 7, 1911.)
    1. Weapons (§ 17) — Criminal Prosecution —Instructions.
    In a prosecution for carrying a pistol, an instruction that if defendant, after purchasing the pistol, traveled home by the shortest and most practical route, he should be acquitted, otherwise convicted, is too stringent; and a requested charge that if defendant was taking the pistol home, and traveling a practical route, the mere fact that he stopped for the purpose of trading would not make him guilty, should have been given.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 31; Dee. Dig. § 17.]
    2. Weapons (§ 17) — Criminal Prosecution —Sufficiency op Evidence.
    Evidence in a prosecution for carrying a pistol held insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Weapons, Dec. Dig. § 17.]
    Appeal from Shelby County Court; James M. Sanders, Special Judge.
    Will Waterhouse was convicted of carrying a pistol, and he appeals.
    Reversed and remanded.
    S. H. Sanders,- for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   DAVIDSON, P. J.

This appellant was convicted for carrying a pistol. There is a former appeal of this case, to be found in 57 Tex. Cr. R. 590, 124 S. W. 633. There are several rather interesting questions in the case, which we deem unnecessary to discuss, inasmuch as we do not believe this judgment ought to stand on the evidence.

Appellant was the hired manservant of Dr. Sims. The evidence discloses that the appellant was a negro. He had bought a pistol, and had carried it to Dr. Sims’, where he worked. The Doctor discovered the fact that appellant had a pistol, and told him to take it away or carry it home. It seems that appellant usually spent the nights at his home, something like a mile from where Dr. Sims resided. On the instructions or order of Dr. Sims, appellant took the pistol to carry home. En route he stopped at the place where he usually did his trading to make some purchases. While there it was discovered he had a pistol, and the sheriff arrested him. The evidence shows that this was about as short and as practical a route to his home as any other, and seemed to be the route that he frequently, or generally, went home. There may have been sufficient in the evidence to show that another route could have been traveled by appellant, which was slightly shorter than the one he did travel. Upon this state of case the court instructed the jury that, if they believed appellant traveled the shortest and most practical route, they might acquit him; otherwise, he should be convicted. We are not undertaking to state the language of the court, but that is the proposition asserted in the charge. The appellant asked special charges to the effect that if appellant was taking the pistol home, and traveling a practical route, the mere fact that he stopped for the purpose of buying groceries would not make him guilty. This is in substance the charge; at least, it is the point of the charge requested. The court’s charge was too stringent, and not in line with the authorities of this court in regard to construing the statute with reference to carrying a pistol. We are of opinion that the requested instructions should have been given.

We are further of opinion that, under the facts stated, the appellant is not guilty of violating the law.

The judgment is reversed, and the cause remanded.  