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.