Irvine v. State , 18 Tex. Ct. App. 51 ( 1885 )

Willson, Judge.

It was proved by the State that the defendant had on his person a pistol at the time and place charged in the information, and that the defendant then and there declared that he wras a deputy sheriff of Montague county, and had been over in Jack county after a horse-thief. There was no evidence disproving, or even tending to disprove, this declaration of the defendant. In the absence of such evidence, said declarations showed that he was not guilty of an offense in having the pistol, he being a civil officer engaged in the discharge of official duty. (Penal Code, art. 319; Gardiner v. The State, 33 Texas, 692.) These declarations accompanied the act of carrying the pistol, and were admissible in evidence as a part of the res gestee. -They constituted a reasonable explanation of his having the pistol, and it devolved upon the State to show their falsity, which was not done; wherefore the evidence does not support the conviction.

There was evidence tending to prove that, at the time and place the defendant was seen with the pistol, he was traveling. A special charge was requested by defendant’s counsel, the purport of which was that if the jury believed from the evidence that at the time defendant had the pistol he was a traveler, they should find him not guilty. This charge, as it is made to appear by a bill of exceptions, was not signed by the judge, nor by him read to the jury, but the jury were permitted to take the same with them when they retired to consider of their verdict. The evidence and the law demanded such a charge, and it should have been given. Whether given or refused, it should have been certified to by the judge; that is, he should have written upon it, “given” or “refused,” and have signed his name thereto officially, and caused the same to be filed among the papers in the cause. (Code Crim. Proc., arts. 679, 680.) When a charge is given, it is required that it shall be read by the judge to the jury. (Code Crim. Proc., art. 683.) When a charge has been requested and refused, the jury shall not be permitted to take the same with them in their retirement. (Code Crim. Proc., art. 684) It appears from the bill of exceptions that the charge requested was neither certified by the judge nor read by him to the jury. It therefore was not given, but must be treated as a refused charge, and as such the jury should not have been permitted to take it writh them in their retirement.

Because the court refused to give the special charge requested by defendant’s counsel, and because the evidence does not warrant the conviction, the judgment is reversed and the cause is remanded.

Reversed and remanded.

[Opinion delivered April 22, 1885.]