O'Neal v. State , 32 Tex. Crim. 42 ( 1893 )

Defendant, having been convicted of carrying a pistol in violation of the statute, prosecutes this appeal.

1. The prosecution proved, that during a wordy altercation with one Robert Corn, defendant exhibited and presented the pistol at Corn. This was part of the same transaction, occurred at the same time, and was properly admitted as res gestæ.

2. Defendant offered to prove by a justice of the peace, that he, by the advice and consent of the county attorney, had "deputized defendant as a peace officer, for the purpose of executing writs, and the protection of his own life." Upon objection, this evidence was excluded, and very properly. Blair v. The State, 26 Texas Cr. App., 387. The justice had no such authority. When a peace officer can not be obtained to execute a warrant of arrest, the magistrate issuing such warrant may direct some suitable person to execute same. Code Crim. Proc., arts. 245, 909. Magistrates have no power to "deputize" citizens, in a general way, to arrest persons or execute warrants, nor authorize them to carry pistols. If a citizen be appointed, in cases provided by statute, to execute processes, he is, so far as that particular case is concerned, clothed with the same authority as peace officers, but this authority terminates when the purpose of the appointment has been attained.

3. Nor did the court err in refusing to permit defendant to testify, that he thought this appointment for the purpose of arresting the negro charged with theft, and named in the warrant, authorized him to carry the pistol. The negro had been arrested and his case disposed of by the courts prior to the date of carrying the pistol charged in the indictment.

4. The court properly excluded the evidence offered by defendant, by which he proposed to prove, that the "country in which he lived was remote from the county site, scarcely settled, beset with violent and lawless men, and thickly overgrown with bushes and timber." The object and purpose of this testimony are not stated, nor is it perceivable; and it is clear that because he lived at a distance from the county site, the country beset with lawless men, and overgrown with bushes, offered him no excuse for the pistol. The statute makes no such exceptions. Penal Code, arts. 318, 319.

5. Defendant offered to prove, that he had reported to the county attorney that one Scheskie had made threats against his life, and that he had been informed by that officer that he had the right to carry his pistol by virtue of the warrant authorizing him to arrest the negro for theft. This evidence was properly excluded. Scheskie had been placed under a bond to keep the peace, and the negro had been arrested and his case disposed of prior to the offense charged. If Scheskie had made subsequent threats, it was defendant's duty to resort to necessary legal proceedings to protect himself, and secure the punishment of the offender. He could not avail himself of such threats as an excuse for carrying the pistol, unless the danger was so "imminent and threatening as not to admit of the arrest" of Scheskie, in case he was about to make an attack upon him. The court did not err in refusing defendant's requested instruction. The judgment is affirmed.

Affirmed.

Judges all present and concurring.