Unlawfully carrying a pistol is the offense; penalty assessed at a fine of $100.00.
Appellant possessed a mortgage upon an automobile belonging to Leon Jackson, a colored man, who was janitor of the First Baptist Church of Abilene. Jackson requested the appellant to defer at least a part of the payment of the mortgage, claiming that he was unable to pay the entire amount at the time but could pay half of it. Appellant insisted that payment *Page 308 in full be made or that the car be stored. While riding in his automobile with a companion, appellant had an interview with Jackson and verbally demanded that the debt be paid or the car stored. Appellant had a pistol in the car at the time. From Jackson's testimony, it appears that appellant exhibited a pistol in a threatening manner. Appellant claims that on the night previous there had been a celebration in which he and others fired some pistols, and that at the time of the interview with Jackson, he did not know that the pistol was in his car. He did not exhibit the pistol to Jackson. When he entered the car he did not know that the pistol was there. When discovered, the pistol was in a scabbard, and it was thrown behind the seat of the car.
From the appellant's testimony and from that of certain peace officers, it was shown that appellant was in the habit of traveling; that during his travels he was a collecter of money. He had sought and obtained from the officers the privilege of carrying a pistol in his automobile or on his person. Appellant did not understand that the peace officers had no right to give him authority to carry a pistol. Apparently the officers did not know that they were not privileged to give appellant such permission.
Appellant requested the court to give to the jury several special charges. The first was that the term "traveler" be defined as "one who goes from place to place, as a salesman; as a common traveler." The second was to the effect that if appellant did not know that the pistol was in the car when he got in it and did not after observing it, exhibit it with any intent to violate the law, he should be acquitted.
Special Charge No. 3 is in substance to the same effect as Charge No. 1, namely, that if appellant had been advised by officers that he was privileged to carry a pistol due to the nature of his business and that he honestly believed that he had such right, there should be an acquittal.
Special Requested Charges Nos. 4 and 5 present substantially the same contentions as Special Charge No. 3.
In the exceptions to the court's charge, there is a paragraph complaining that there being evidence that appellant had a pistol and had fired a pistol on the night before at a celebration in which others had done likewise, there were two transactions, and that there should have been an election between them and an instruction upon the subject by the court. We fail to find. any exception to the charge or a special charge upon the subject. That is to say, there is no exception to the introduction of *Page 309 the testimony, nor was there any exception or special charge to the court requesting an instruction upon that subject. This. being a misdemeanor case, the necessity for a special charge upon the matter was imperative in order to invoke consideration on appeal. See Burrows v. State, 57 S.W.2d 846; and cases; also Texas Jur., vol. 4, p. 74, sec. 47; and Wills v. State,77 S.W.2d 875.
Touching the special charges, it is thought that the alleged facts upon which appellant relies do not bring his act within any of the exceptions to article 483, P.C., 1925, which would justify his possession of the pistol under the circumstances detailed.
The court embraced in his charge the following:
"Article 484 of our statutes provides that Article 483 shall not apply to persons traveling, nor to the carrying of arms on one's own premises or place of business."
There appears no evidence that at the time in question the appellant was a traveler.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.