
    YOUNGER v. STATE.
    (No. 3460.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.)
    1. Weapons &wkey;>17 — Unlawful Carrying— Instructions.
    In a prosecution for unlawfully carrying a pistol, an instruction that if the jury believed from the testimony that the defendant was, at the time he was arrested, a traveler, “you will acquit him,” sufficiently submitted the issue of his being a traveler.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. &wkey;>17.]
    2. Weapons <&wkey;ll — Unlawful Carrying— “Traveler.”
    Defendant riding about a neighborhood, working at various places, or riding in search of work, intending, if he found none, to proceed to another county, was not within the definition of “traveler,” as fixed by the statute relating to the unlawful carrying of weapons.
    [Ed. Note. — For other cases; see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. <5&wkey;ll'.
    For other definitions, see Words and Phrases, First and Second Series, Travel.]
    3. Criminal Law <&wkey;639 — Triai^Counsel for Prosecution — Appointment.
    Where all the papers in a prosecution had been filed by -the county attorney, but when the case was called he was absent, it was not error for the court to appoint an attorney to prosecute.
    [Ed. Note! — For other cases, see Criminal Law, Cent. Dig. §§ 1485-1495; Dec. Dig. ‘<&wkey;> 639.]
    
      Appeal from Henderson County Court; C. D. Owen, Judge.
    C. C. Younger was convicted of carrying a pistol, and appeals.
    Affirmed.
    Ernest A. Landman, of Athens, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of unlawfully carrying a pistol. He was a young man, and had been in Henderson county a few months. He had worked for several parties; one of them for about four months, and the others only a short time. He was working wherever he could find something to do, and when he would get out of work at one place he would hunt work at other places. It seems he had nothing except what he wore, and a six-shooter, found upon his person. He testified he had no other goods, not even a trunk or hand grip. It is further in evidence that he was seeking work in I-Ienderson county, not far from the dividing line between that and Navarro county, when he had determined, if he failed to get work that day in Plenderson county, he would cross the river into the other county and seek employment. The testimony indicates that he had been in what he calls the “bottom” to assist some woman whose wagon had been “bogged.” Upon leaving that place seeking work, he passed a house where parties were trying to rope a yearling in a lot. 1-Ie suggested that he could rope the yearling for them like they roped them in West Texas. 1-Ie. secured a rope and made a failure on the first throw at the animal. Upon stooping down to pick up the rope, the constable, whom appellant was assisting in trying to rope the yearling, discovered what he said was the print or impress of a pistol. When appellant threw the second time he succeeded in putting the rope on the yearling, which jerked him around, and the constable then discovered the fact what he had seen as the impress of a pistol was in fact a pistol. He arreáted him and took the weapon from him. So there is no question of the fact that defendant had the pistol. There seems to be no question of the fact that he was seeking work with a view, if he failed that day in Henderson county, that he would cross the river into another county for- that purpose.

1-Iis contention is that he was a traveler. If he was, he ought not to have been convicted; if he was not, the conviction was right.

Charges were requested by appellant submitting this issue to the jury, which were refused by the court. The court, however, in the main charge, thus instructed the jury:

“You are further instructed that if you believe from the testimony that defendant was, at the time he was arrested, a traveler, you will acquit the defendant and say by your verdict not guilty.”

This submitted the issue. The transcript fails to show that appellant excepted to the court’s charge before being read to the jury and a request at that time for the submission of his special charges. His bill of exceptions states that he excepted to the main charge of the court, but does not say at what time he did so. The theory of the defendant was that he was without a home, and was searching for employment, and thereby became a traveler. The evidence shows he had no home, and was just wandering around in the neighborhood seeking work. If appellant had found a place to work, or had obtained employment, then he might carry his pistol to that place of employment, but we are of opinion that he would hardly come within the definition of traveler, as fixed by the statute, under a state of case where he was riding around through the neighborhood and over the country, as shown by this record. The charge given was really favorable to appellant.

Another question is raised by appellant, to wit, that he was prosecuted by an attorney appointed by the court and not by the county attorney. The facts, as set out in his bill, show that appellant was arrested on the 14th day of January, placed in jail, and the case set down for trial on January 30th, and the witnesses were subpcenaed to appear on that date. When the case was called for trial, the county attorney was .absent, in the town of Malakoff, attending justice court. The court appointed Dickerson, an attorney of Athens, to prosecute. Appellant excepted to the appointment of Mr. Dickerson on the ground that he was not assistant county attorney, and neither the county attorney nor any assistant county attorney was present at the trial of the case. In support of this proposition he cites Moore v. State, 56 Tex. Cr. R. 300, 119 S. W. 858, an opinion written by Judge Ramsey. The case is not similar; the questions are widely variant. In the Moore Case the opinion shows that there was no county attorney in Aransas county, and the county judge appointed the attorney in that case to file all the papers, make complaint, and file information. It was held this was without authority; that the judge was not authorized to appoint a county attorney in the manner in which it was done in that case in vacation. The Constitution requires that the county attorney must be elected by the people. In case of a vacancy, the place may be filled by the commissioners’ court, none of which had been done in the Moore Case. The question here is simply in the absence of the state’s counsel the court appointed an attorney to prosecute the case. All the papers had been filed by the county attorney. We are of the opinion there was no error in this.

The judgment is therefore affirmed. 
      <g=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     