22 BEEBE V. JUDD. [136 BEEBE V. JUDD. Opinion delivered October 21, 1918. 1. WEAPONS — CARRYING UPON JOURNEY.—Where a brakeman on a passenger train running a distance of 180 miles, having some acquaintances at every station on his route, carried a 38-caliber Smith & Wesson pistol concealed on his person, it was a question for the jury whether„he was upon a journey. 2. CRIMINAIY:LAW—JEOPARDY.---Where the court erroneously directed a verdict for defendant in a criminal case punishable by imprisonment, the cause, on reversal, can not be remanded for a new trial. Appeal from White -Circuit Court ; J. M. Jackson, Judge ; reversed. J. N. Rachels, for appellant. It was error to direct a verdict. Whether he was on a journey or not was a question for a jury. He was traveling his usual route and knew many people at each stopping place on his daily travel. 99 Ark. 236, 45 Id. 359; 55 Id. 181 ; 45 Id. 536. Bkundidge & Neelly, for appellee. Appellee was upon a journey within the exceptions of the statute. 55 Ark. 181; 99 Id. 236; 45 Id. 359- 536. There was nothing to submit to the jury and a verdict was properly directed. HUMPHREYS, J. Appellee was tried and convicted in the mayor's court of the town of Beebe for carrying a pistol as a weapon and was fined $50. An appeal was prosecuted from the judgment of conviction to the White Circuit Court. The cause was there tried by a jury upon the charge, appellee's plea of not guilty and the evidence adduced. Upon the request of appellee, the court peremptorily instructed the jury to return a verdict of not guilty. The jury thereupon returned the following verdict : "We, the jury, find the defendant not guilty. "C. N. Finn, Foreman."
ARK.] 23 From this . verdict and judgment, an appeal has been properly prosecuted to this court. The evidence showed that appellee was a brakeman on passenger trains on the Iron Mountain Railroad, running between Little Rock, Arkansas, and 'poplar Bluff, a distance of 180 miles. While engaged hi assisting passengers on and off the train at Beebe en roLe from Little Rock to Poplar Bluff, he was arrested en a warrant charging him with carrying a pistol as a we von. A 38 caliber Smith & Wesson was found in a scabbard concealed on his perion. He had some acquaintances at every station on his route. It is insisted that the court erred in giving a peremptory instruction for acquittal. This is true unl s ss the undisputed facts constitute the trip a journey in tb■ law. Appellee defended on the ground that he was on a ;,-mr-ney and protected by the exception contained in the s, at-ute against carrying a pistol as a weapon. Under ne former adjudications of this court, it can not be said the\ the undisputed facts in this case show that appellee was on a journey. It was a question for a jury to determine \ under proper instructions. Hathcote v. State, 55 Ark. 181. \ For the error indicated, the judgment is reversed. As jeopardy attached, the cause can not be remanded for a new trial.
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