State v. Clayton , 43 Tex. 410 ( 1875 )

Reeves, Associate Justice.

This is an indictment against Jack Clayton, charging him with a violation of the act of April 12, 1871, to regulate the keeping and bearing of deadly weapons.

The indictment charges that Clayton did “unlawfully carry on and about his person a certain pistol, he then and there having no reasonable grounds for fearing an unlawful attack on his person, nor was he then and there either a militiaman in actual service, or a peace officer, or a policeman, nor was he then and there on his own premises or at his own place of business.”

The court sustained the defendant’s motion and quashed the indictment on the ground that it discloses no offense known to the laws of this State. The district attorney excepted, and gave notice of appeal.

The only question in the case is as to whether or not the indictment is sufficient as charging an offense under the first section of the act referred to above.

In the case of Duke v. The State, decided at G-alveston at the last term, we held that the indictment must show by negative averments that the defendant is not within any of the exceptions of the statute applicable to the particular violation complained of. It was further said in that case that substantial compliance with the statute was all that ' was required.

We are of opinion that the indictment is sufficient as charging the offense of carrying a pistol on the person. It negatives that the defendant had any reasonable grounds for fearing an unlawful attack on his person, or that he was carrying the pistol for the lawful defense of the State as a militiaman, or as a peace officer or policeman, or that he was on his own premises, or at his own place of business. The exception in favor of civil officers is embraced by the averment that the defendant was not a peace officer or policeman. So the averment that the defendant carried the pistol on or about his person implies a denial that it was kept or carried with his baggage.

The judgment is reversed and case remanded.

On Rehearing.

Roberts, Chief Justice.

The judgment was reversed in this case at a former day of the term, since which time it has been communicated to us that the indictment was set aside by the court below on exceptions, not for any defect in it, but because the county of Lampasas was exempt from the operation of the law relating to the carrying of firearms, under which the indictment was found; that it having been exempted by the proclamation of the Governor, issued in April, 1871, in pursuance of the statute creating the law, the power given to the Governor by the law was completely performed and exhausted by that act, and his subsequent proclamation, in February, 1873, revoking the exemption of that county, and requiring thenceforward the enforcement of the law therein, was null and void, and could not have the effect of removing the exemption once made, and that therefore the law was not in force in Lampasas county.

The clause of the law of 1871 relating to the power and action of the Governor as to the exempting of certain counties from its operation, is as follows:

“ This act shall not apply to nor be enforced in any county of the State which may be designated in a proclamation of the Governor as a frontier county, and liable to incursions of hostile Indians.” (Paschal’s Dig., art. 6515.)

Without this clause the law would certainly be in force in Lampasas county as well as in any other.

If the Legislature can confer such a power on the Governor to designate by his proclamation certain counties in which prosecutions for infractions of this law shall not be instituted and maintained in the courts, on account of the incursions of Indians, it is but carrying out the spirit and object of the law for him to continue to exercise that power of designation from time to time, accordingly as the reason and necessity for its exercise may or may not exist during the existence of the law. The discretion is vested in the Governor to designate the exempted counties, without any express limitation, either in the number of proclamations or the times of issuing them, or the manner in which the exemption shall be made in the proclamation.

It therefore may be done by a proclamation revoking the exemption, where the necessity for it has, in his judgment, ceased to exist, as well as by a new designation of exempted counties in a proclamation which left the county of Lampasas out of the list.

We conclude, then, that the law was in force in Lampasas county when this indictment was found, and that there is no reason found in the matters called to our attention for changing the judgment already rendered in this case.

Reversed and remanded.