Williams v. State , 42 Tex. 466 ( 1874 )

Gould, J.

So much of the third section of an “Act to.reg- “ ulate the keeping and having of deadly weapons,” as it is material to copy is as follows: “If any person shall go into “ any church, * * * and shall have or carry about his person, “ a pistol, * * * unless an officer of the peace, he shall be “ guilty of misdemeanor, etc.” * * On the trial of an indictment, under this statute, the court instructed the jury: “If “ you are satisfied from the evidence, that the defendant eom- “ mitted the offense charged, he cannot justify or excuse the act . “ by showing that he held a commission as a special police- “ man, unless when it appears from the evidence, that at the “ time of the act he was in actual service as a special policeman, “ and in the discharge of his duties at the time and place “ charged.” It devolved on the defendant to show that he was at the time a peace officer, the fact being one which may be supposed to be peculiarly within his knowledge and easily proved. But the section of the law under which the indictment was found, does not go further, as the court did, and require that he should show that, at the time and place charged, he was in the discharge of his duties as such. The whole statute is loosely framed, and some of the provisions of the first section would seem to indicate an intention to limit the privilege of a peace officer in carrying the weapon round, to cases when he was in actual service. We do not think, however, looking at the whole law, and especially to the third section, under which the indictment was found, that it admits of such a construction. For the error in the charge of the court, the judgment is reversed and the case remanded.

Reversed and remanded.