I am sorry to be in disagreement with my Brethren, but we have always held that the facts in any case are peculiarly for the trial judge and jury, and will not be disturbed by us save in case the judgment be without support. In this case appellant had the pistol beyond question; he went about fifty miles from one ranch to another, traveling on one of the most frequented highways in the State. His employer testified for him, and on cross-examination said:
"One traveling the road that the defendant did is in sight of houses all the way, unless it is for two miles in the pasture next to my Childress County place, just before he goes out onto the main highway. He would come through Childress, Carey, Estelline, Newlin and Memphis, and they have peace officers at all those places. * * *
"In going from the Childress County ranch to the one northeast of Memphis, one travels most of the way along the public highway, and most of the time is in sight of houses, and usually passes a number of cars and vehicles along the road."
While on this trip appellant had a difficulty with another man who swore that appellant drew a pistol on him. This case was tried before the judge without a jury. The only defense was that appellant was a traveler. Under the facts the trial judge held him not exempt from punishment upon such plea. We seem to have uniformly held the decision of the question as to whether one carrying a pistol is a traveler, to be a question of fact and hence one essentially for the trial court or jury. I am unwilling, under the facts of this case, to depart from such rule. The question here involved is infinitely more *Page 27 vital and far reaching than the mere question of whether this particular defendant should pay a fine. It seems more important even than the crying need for protection against people who on one excuse or another arm themselves with pistols and on the slightest provocation take human life. The question is, having laid down what seems to be a sound and just rule, viz: that it is not what this court would have done upon the facts of a particular case, but were there any facts before the trial court fairly supporting his conclusions of fact, if so, this court would be bound by his decision, — can we then justify a departure from said rule in this case?
Armstrong v. State, 98 Tex.Crim. Rep., opinion by Judge Morrow, is a case on all-fours with the one before us. It was tried by the judge. The accused was going fifty miles with a pistol in his grip in his car. We said in that case: "The decision that the appellant was not a traveler, is deemed binding upon this court." In George v. State, 90 Tex. Crim. 179, a case also tried before the court and defended on the ground that George was a traveler, where proof showed a pistol was carried in a car from Taylor to Austin and return, a distance of approximately eighty miles, we said:
"Was appellant a traveler? The trial court concluded that he was not. This question is one of fact for the trial court or jury, as the case may be. Impson v. State, 19 S.W. Rep. 677; Shelton v. State, 27 Texas Crim. App. 443; Williams v. State, 74 Tex.Crim. Rep., 169 S.W. Rep. 1154; Witt v. State,89 Tex. Crim. 368; 231 S.W. Rep. 395" — and the case was affirmed.
In Brown v. State, also an opinion by Judge Morrow, — approving the holding in the George case, supra, we said:
"This court held that under the evidence, whether he was a traveler was a question of fact, and that the decision of that case against the accused was binding upon this court."
The Brown case was a jury case, and was reversed for an erroneous charge to the jury. In Moore v. State, 86 Tex. Crim. 502, Judge Davidson said, speaking of the defense of being a traveler:
"If the defense be honest and supported by the facts, and no evidence is shown impeaching it, an acquittal should be awarded; but, if his honesty is at issue or the facts impeach such defense, or tend so to do, a conviction will not be disturbed on appeal where the jury have resolved the facts against the defendant upon such issue."
In Impson v. State, 19 S.W. Rep. 677, we said one should not be *Page 28 permitted to use the exception in the statute as a cloak for a violation of the law.
I will not extend the discussion. I have said enough to make my position plain. The appellant in this case had a pistol. He was going fifty miles on a broad beaten highway, through a good sized town every few miles. He used the pistol in an altercation which he said was in self-defense, but the other party stated differently. The decision of that matter was for the trial court who saw and heard the witnesses. The pistol toter is one of the most dangerous menaces to good order, peace and human life. There seems no excuse for a man to have had one in the situation detailed in this record. The burden is on one trying to bring himself within one of the exceptions to any statute. I see no reason for disturbing the judgment. The case is insignificant, but the principle involved seems to loom large.
I must respectfully dissent from the judgment granting the motion for rehearing and reversing and remanding the cause.