Appellant denied upon the witness stand that he had ever been guilty of any improper relations of any kind with the prosecutrix, and contradicted the statement testified to by prosecutrix's father that he had made an admission to the contrary. Appellant placed upon the witness stand Mrs. Cordie James, who testified to facts which directed suspicion to her own husband, Frank James, as being the author of Kate Wooley's condition. The record discloses that Frank James left the country about the time this unfortunate girl's condition became known, and he was still absent at the time of the trial. It also appears from the record that appellant was unaware of the fact that prosecutrix's mentality was such that she could not testify, or at least, would not be called by the State as a witness. After appellant had developed from Mrs. James a recital of the facts which pointed. suspicion toward her husband, and without questioning her about the matters subsequently inquired about by the State, the district attorney on cross-examination asked her if she was not present during a conversation between appellant and Kate Wooley, and if she did not hear appellant tell Kate Wooley that "if she testified to the truth it would send him (appellant) to the penitentiary." The witness denied having heard any such statement from the appellant. She was then asked by the district attorney if she did not tell J. R. Wooley, father of prosecutrix, that she had heard appellant make such alleged statement. This she also denied. In rebuttal the State offered J. R. Wooley, ostensibly to impeach Mrs. James, and proved by him that Mrs. James had told him that appellant made the statement in question to Kate Wooley. To this appellant objected on the ground that it was not in the presence or hearing of appellant, was hearsay testimony and was an attempt to impeach a witness on a collateral and immaterial matter.

We believe the objections were good, and should have been sustained. That a party may impeach his own witness where he states an affirmative fact injurious, and in the nature of a surprise, is well settled. Ross v. State, 45 S. W. Rep., 808; Finley v. State, 47 S. W. Rep., 1015; but it is equally true that if the witness merely fails to testify to facts expected to be elicited, the party offering the witness on this point cannot under the guise of impeachment, supply the evidence from a third party, or get before the jury statements that are otherwise inadmissible. Finley, supra, Knight v. State, 65 S. W. Rep. 89; Willis v. State, 49 Texas Crim. Rep., 139, 90 S. W. Rep., 100; Benson v. State, 51 Texas Crim. Rep., 367, 103 S. W. Rep., 911; Finks v. State, 84 Texas Crim. Rep., 536, 209 S. W. Rep., 154, and authorities therein cited. In Rice v. State, 51 Texas Crim. Rep., 255, 103 S. W. Rep., 1156, the rule is reaffirmed that a predicate cannot be laid for contradicting a witness on a collateral matter, and approving Wharton's definition of what is a collateral matter, as follows: "The test of whether a fact inquired of on cross-examination

is collateral is this:
prove it as a part of his case tending to establish his plea?"

Would the cross-examining party be entitled to

Under all of the foregoing rules the evidence elicited from J. R. Wooley was inadmissible. So far as the particular point at issue is concerned the State made Mrs. James its own witness, because appellant had not questioned her with reference to these matters in any particular. The State could properly ask her if she had not heard appellant tell Kate Wooley that if she testified to the truth it. would send him (appellant) to the penitentiary, because the State would have been permitted to have proven this fact upon the development of its case in chief under the rule laid down by Mr. Wharton, because such statement would have tended to establish the plea of the State-to-wit; that appellant was guilty of the offense of rape upon prosecutrix. When Mrs. James denied having heard appellant make any such statement she did not testify to an affirmative fact injurious to the State, but simply failed to testify to a fact which would have been helpful. It was not the issue as to whether or not Mrs. James told J. R. Wooley that she had heard appellant make the alleged statement, but the real issue was, did the appellant in fact make the statement, and when the witness Wooley was permitted to testify that Mrs. James had told him on some occasion that she had upon another occasion heard the appellant make the statement in question to prosecutrix it was supplying testimony which the State had been disappointed in eliciting from Mrs. James. To our minds it was clearly upon a collateral matter, was hearsay in so far as the appellant was concerned, was inadmissible, and may have been of a seriously injurious character.

Appellant contends that the fourth and fifth paragraphs of the court's charge shifted the burden of proof from the State to the appellant in so far as the ascertainment of the mental condition of the prosecutrix was concerned, and as to appellant's knowledge of such mental condition. The language chosen by the court in the submission. of these issues was not, perhaps, as clear as it might have been, but taking them together and in connection with the entire charge, we do not believe the jury could have been misled or that they are subject, in full, to the criticism directed at them. They do present the issue in a negative way, which is always difficult and confusing; and we are inclined to believe, in view of another trial, that the special charge requested by appellant states the issue more clearly than the language employed by the court. We do not set out the charge given by the court, but the special charge requested was as follows: "The burden is upon the State to prove beyond a reasonable doubt, not only that the defendant had carnal intercourse with Kate Wooley, as alleged in the indictment, and that at the time he did have such carnal intercourse, the said Kate Wooley was so mentally diseased as to have no will to oppose such act of carnal knowledge, but you must further find and believe from the evidence, beyond a reasonable doubt, that

the defendant knew at the time that the said Kate Wooley was so mentally diseased; and unless you so find and believe from the evidence, beyond a reasonable doubt, you will acquit the defendant, and so say by your verdict."

For the error pointed out the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

PAUL GEORGE V. THE STATE.

No. 6356. Decided October 19, 1921.

Carrying Pistol-Traveler-Sufficiency of the Evidency.

Where, upon trial of unlawfully carrying a pistol, the evidence showed that defendant, while carrying a pistol, traveled from Taylor to Austin, Texas, about 40 miles apart, and that it took about two hours each way to make the trip, there was no reversible error in the court's holding that defendant was not a traveler under the facts; and the the evidence being otherwise sufficient the conviction is sustained.

Appeal from the County Court of Williamson. Tried below before. the Honorable F. D. Love.

Appeal from a conviction of unlawfully carrying a pistol; penalty, a fine of $100.

The opinion states the case.

W. C. Wofford, and Luke Mankin, for appellant.-On question of traveller. Cases cited in opinion.

R. H. Hamilton, Assistant Attorney General, and Dan Mooney, County Attorney, for the State.-Cited: Sanders v. State, 20 S. W. Rep., 556, and cases cited in opinion.

LATTIMORE, JUDGE.-Appellant was convicted in the County Court of Williamson County of the offense of carrying on or about his person a certain pistol, and his punishment fixed at a fine of $100.

The case was tried before the court without the intervention of a jury. But two questions are raised. Did appellant have the pistol on or about his person? Was he a traveller? The State's testimony makes an affirmative answer to the first question. The constable testified that he went to appellant's home to serve some papers on him; he was not there, but the mother of appellant informed the officer that appellant told her he would be home about 5 or 6 o'clock that evening; so the officer waited and in a little while appellant drove up in a car. The officer further stated that he went to said automobile and "defendant got out of same with his overcoat, and he asked de

fendant for his overcoat, and defendant handed same to him and that he searched said overcoat and found a pistol in the pocket of same."

Appellant testified that he left home that morning in a Ford touring car and before he left he put said pistol in his overcoat pocket and placed both the pistol and overcoat under the cushion of the rear seat of said car, drove to Austin and back that day without at any time touching or handling said pistol from the time he left home until his arrival at the time testified to by the constable. He said that when he reached home at the time in question the officer came out, looked under the front seat of the car and searched same; then looked under the rear seat, took said overcoat out and handed it to appellant's mother, then took it from her, searched it and found the pistol in question. There were the only two witnesses.. No reason appears why the mother of appellant was not used by him to corroborate and substantiate his testimony if true, and we think the officer's testimony clearly makes out a violation of the law. The trial jury or court is vested with the matter of reconciling conflicts in the testimony, or accepting such as they believe true and rejecting the other, and unless it appear that the verdict is manifestly unsupported by the evidence it is our duty to uphold same. In the Sanders case, 20 S. W. Rep., 556, this court through Judge Davidson said:

"The State made out a prima-facie case of guilt against the defendant, and, in order to avoid the conviction, it devolved upon him to establish facts or circumstances to excuse or justify the prohibited act. While the question of intent or honesty of purpose, in a proper case, may excuse or justify carrying a pistol, yet such matters cannot be simulated for the purpose of evading or violating the law. Stilly V. State, 27 Texas App., 445, 11 S. W. Rep., 458; Impson v. State, 19 S. W. Rep., 677. 'If the defense is an honest one, and supported by the facts, and there is no evidence tending to impeach it, the jury. should acquit, and under such circumstances, if a conviction be secured, it should not be permitted to stand.' Impson v. State, 19 S. W. Rep., 677. On the contrary, if such is not the case, and the defense is not an honest one, or the facts impeach it, or tend to do so, and the jury convict, this court will not disturb the conviction. To our minds the testimony fully sustains the conviction, wherefore the judgment is affirmed. Judges all present and concurring."

The officer and appellant squarely contradict each other as to whether appellant had the overcoat when he got out of the car. Appellant had it in his power to have shown by his mother that the officer was wrong. He did not choose to do so, or show any reason why he

did not.

Was appellant a traveller? 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 Texas Crim. Rep.,

639, 169 S. W. Rep., 1154; Witt v. State, 89 Texas Crim. Rep., 368, 231 S. W. Rep., 395. We are aware that the decisions of this State are in a condition of hopeless confusion as to when a man is or is not a traveller, the earlier cases tending in the direction of greater, and those of later years, of less latitude of construction. We have examined all the authorities cited by appellant and many others, and have found no case holding in substance that a man who goes a distance which can be covered in two hours, in the broad daylight, along a road where he was probably never out of sight of a number of houses, is held to be a traveller. We have found no case where a man is held a traveller whose absence was for less than a day. Many of the earlier decisions are based on journeys comparatively short in distance but necessarily consuming some time by reason of the less expeditious modes of travel. Some cases hold that going from one county to another would make one a traveller, but later cases demonstrate the fallacy of such holding. Still other cases appear in which this court, as a matter of law, attempts to say when one is and when one is not a traveller, and it is earnestly urged by Judge Henderson in the Bain case, 38 Texas Crim. Rep., 635, that the Legislature should make a statutory definition of the term under discussion.

In the instant case appellant claimed that when he left home in the morning he intended going to Austin and there getting some woman and going on to San Antonio, returning the next day. The distance he intended to go is not stated in the record. Appellant's friend, whose statement appears in the record as having seen him in Austin and gone with him to various places in search of two women, says nothing about any intent or plan to go to San Antonio. Appellant's mother told the officer who went to the house looking for him, that he told her he would be home at 5 or 6 o'clock that evening. From the statement of facts it appears that Austin and Taylor are about forty miles apart, and that it took about two hours each way to make the trip. The trial court held appellant not a traveller under the facts, and we are unwilling to hold that this conclusion was without support, and that one who only went a two hours drive was a traveller. We do not believe one going with a crowd on an excursion, and coming back the same day, though going a greater distance than did appellant, could buckle on a pistol, and hide himself from prosecution by claiming he was a traveller as a matter of law. "Tempora Mutantur et nos mutamur." A man going in an ox wagon twenty miles and having to camp out at night, may have been held a traveler in times past, but it would certainly license pistol carrying with all its train of evils to hold in these days of swiftly moving automobiles which throng every road and carry their passengers the distance last mentioned, if desired, in a half hour, that persons are to be held travellers as a matter of law on authority of such precedents. We do not believe that appellant had discharged the burden fixed on him by all of our courts,