#### 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. CriminaJlaw — jeopardy.—Where the court erroneously directed a verdict for defendant in a criminal case punishable by imprisonment, the^cause, onjreversal, 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.

Erunéidge S Redly, 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.”

*23From 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 in assisting passengers on and off the train at Beebe en route from Little Rock to Poplar Bluff, he was arrested on a warrant charging him with carrying a pistol as a weapon. A 38 caliber Smith & Wesson was found in a scabbard concealed on his person. 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 unless the undisputed facts constitute the trip a journey in the law. Appellee defended on the ground that he was on a journey and protected by the exception contained in the statute against carrying a pistol as a weapon. Under the former adjudications of this court, it can not be said that 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.