Cite as Bain v. State, 44 S.W. 518 (Tx. 1898)

                              BAIN

                               v.

                             STATE.

               Court of Criminal Appeals of Texas.

                         Feb. 23, 1898.

     Appeal from Motley county court; A. R. Anderson, Judge.

     George Bain appeals from a conviction. Reversed.

     W. M. Smith, for appellant. 

     Mann Trice, for the State.

     HENDERSON, J.

     Appellant was convicted of carrying a pistol, and his
punishment assessed at a fine of $35; hence this appeal.

     Upon the trial, the defendant being on the stand as a witness
in his own behalf, the state asked him "if it is not a fact that
you have been heretofore charged, in a number of instances, in this
county, with like offense"; to which he replied, "I have been
charged before with like offenses; I don't know how many times."
This evidence was clearly inadmissible.  The fact that a man
unlawfully carries a pistol is no bar upon his credibility as a
witness.  The lowest penalty attached to this offense is a fine of
$25.  The jury assessed a fine of $35.  This illegal testimony may
have caused this result.  The defense was that appellant was a
traveler.  It appears from the record that he lived in Motley
county, about 35 miles on a direct line from Childress, the point
of his destination, and in going to which place on this journey he
passed through portions of several counties.  He arrived at
Childress about 1 o'clock in the day, and remained overnight,
returning home the next day.  Unquestionably, this raised the issue
whether or not he was a traveler at the time he was charged with
carrying the pistol.  The illegal evidence may have induced the
jury, notwithstanding they might have believed he was a traveler,
to find against him because of his habit of carrying pistols.

     Under the circumstances of this case, we believe the defendant
had a good defense.  He was evidently a traveler.  We are aware
that the decisions upon this point are not harmonious.  See Darby
v. State, 23 Tex. App. 407, 5 S. W. 90; Price v. State (Tex. Cr.
App.) 29 S. W. 473; Stanfield v. State (Tex. Cr. App.) 34 S. W.
116; Eubanks v. State (Tex. Cr. App.) 40 S. W. 973; Stayton v.
State, Id. 299.  The fact is that it is difficult to tell, under
the statute, who is a traveler.  The statute uses the term
"traveler," and exempts all such from liability or punishment for
carrying a pistol.  The general definition of a "traveler," in the
dictionaries, is "one who travels in any way; one who makes a
journey, or who goes from place to place." See Cent. Dict.; Webst.
Dict.  By this term, construed under its ordinary meaning, almost
any one who goes from place to place would be exempt from the
operation of the law.  We do not understand, however, that it was
the object of the lawmakers to place this liberal construction on
the statute by the use of this term.  Article 9, Pen. Code 1895,
requires: "All offenses shall be plainly defined, and the import of
the language shall be construed without regard to the distinction
usually made between the construction of penal laws and laws upon
other subjects, and no person shall be punished for an offense
which is not made penal by the plain imports of the words." Article
25, Code Cr. Proc. 1895, provides: "The provisions of this Code
shall be liberally construed so as to attain the objects intended
by the legislature, the prevention and suppression and punishment
of crime." If the liberal definition is given to the word
"traveler," almost every person who goes from one place to another
may be considered a traveler.  If a statutory interpretation or
construction is enforced, it is difficult, under the definition, to
determine who is a traveler.  We would suggest, in this state of
uncertainty, that the legislature define what is meant by a
"traveler."  For the error above pointed out, the judgment is
reversed, and the cause remanded.