
    STEPHENSON v. STATE.
    (No. 6844.)
    (Court of Criminal Appeals of Texas.
    March 7, 1923.)
    I.Weapons <&wkey;l I (I) — .Warrants of arrest may be directed to persons other than peace officers.
    Code Cr. Proc. 1911, arts. 278, 979, providing that magistrates may direct warrants of arrest to suitable persons, and that justices of the peace may authorize persons other than peace officers to execute warrants by naming them in the warrant, were not affected by Pen. Code, art. 476,- as amended by Acts 1918, Fourth Called Sess. c. 91, § 1 (Vernon’s Ann. Pen. Code Supp. 1922, arts. 475, 476), which does not except from the offense of unlawfully carrying arms, as defined in article 475, a special policeman or deputy constable receiving less than $40 per month, while not in the actual discharge 'of his official duties.
    2. Arrest &wkey;>65 — Indorsement on capias held sufficient to authorize special deputy to serve
    The authority of a particular person authorized by a justice of the peace to serve a warrant is sufficiently designated by indorsement on the capias, naming him, to perform that duty.
    3. Weapons <&wkey;lll(l) — Citizen appointed under statute can carry pistol.
    A citizen specially appointed under Code Cr. Proc. 1911, arts. 278, 979, to execute a warrant is, so far as the párticular case is concerned, clothed with the same authority as a peace officer, and has the right to carry a pistol.
    4. Weapons <&wkey;l7(5) — Whether special deputy was serving process at time he was found with pistol, was question of fact.
    In a prosecution for unlawfully carrying a pistol, where defendant claimed, at the time he was arrested, that he was a deputy constable appointed to serve a capias pro fine, whether he was at the time of arrest engaged in an effort to execute the process was an issue of fact for the jury.
    5. Criminal law <&wkey;322— Presumed that officer proceeds in legal manner to execute process.
    Where a deputy constable, who was appointed to execute a capias pro fine, was arrested for carrying a pistol without the limits of the county of his appointment, in the absence of proof to the contrary, it must be presumed that he would have proceeded in a legal manner to execute the capias.
    Appeal from Red River County Court; R. X Williams, Judge.
    Prank .Stephenson was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed and remanded.
    T. T. Thompson, of Clarksville, and B. B. Sturgeon, of Paris, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for unlawfully carrying a pistol, with fine of $109 assessed.

Appellant was apprehended in Red River county on May 14, 1921, with a pistol upon his person, under circumstances making him amenable to the law denouncing the carrying thereof, unless he came within one of the exceptions.

The only bill of exception in the record reveals that in Titus county (which adjoins Red River county) one .Setzer had been fined for some offense in justice court, which fine remained unsatisfied. On May 12, 1921, W. M. King, justice of the peace, issued a capias pro fine against Setzer for the sum of $10.70, directed to “Any sheriff or any constable of Titus county,” authorizing the arrest and. detention of Setzer until such fine was paid. The writ appears to be regular in all respects. Indorsed thereon is the following:

“This writ was placed in the hands of a special debita const. Prank Stevenson, sworn in to serve this writ. [Signed] W. M. King, Justice of Peace Titus Oo. Texas.”

The testimony of appellant is not set out in detail in the statement of facts, but it is recited therein that he testified “that he was in Red River county to execute said writ at the time he was arrested.” It is further noted in the statement of facts that both appellant’s evidence and the capias pro fine were objected to by the state, and the objection sustained. The bill only complains of the failure to admit in evidence the writ.with the foregoing indorsement, and we must assume that appellant was permitted to testify that he was in Red River county for the purpose of executing a capias pro fine, but that, when the writ was offered, it was excluded.

After defining, in article' 475, P. C., the offense of unlawfully carrying arms, it is provided in article 476, P. C. (as amended in Acts 1918, Fourth Called Sess. c. 91, § 1 [Vernon’s Ann. Pen. Code Supp. 1922, arts. 475, 476]):

* “The preceding article shall not apply to * * * any peace officer in the actual discharge of his official duty; * * * this exception shall not apply to any deputy constable * * * who does not receive a compensation of forty dollars or more per month for his services as such officer, and who is not appointed in conformity with the statutes of this state authorizing such appointment.”

The evident purpose of the Legislature in the 1918 ámendment was to discourage and prevent the useless and promiscuous carrying of arms under the guise of special deputies, etc. This amendment was not called to our attention at the time we were considering the case of Barnett v. State, 89 Tex. Cr. R. 45, 229 S. W. 519, hence was not discussed in the opinion. It did, however, receive some notice in Jones v. State, 91 Tex. Cr. R. 240, 238 S. W. 661. We think it unnecessary to give any extended attention to said amendment at this time, as we are of opinion other articles of the Code of Criminal Procedure control the present case. Article 278, C. C. P., provides:

“In cases where it is made known by satisfactory proof to the magistrate that a peace officer can not be procured to execute a warrant of arrest, or that so much delay will be occasioned in procuring the services of a peace officer that a person accused will probably escape, the warrant of arrest may be directed to any suitable person who is willing to execute the same; and, in such case, his name shall be set forth in the warrant.”

And article 979 reads:

“A justice of the peace may, when he deems it necessary, authorize any person other than a peace officer to execute a warrant of arrest by naming such person specially in the warrant; and, in sueh case, such person shall have the same powers, and shall be subject to the same rules that are conferred upon and govern peace officers in like cases.”

In our judgment the amendment of article 476, P. C., in 1918 affects neither of the articles of the Code of Procedure last above quoted, but leaves authority in the justice of the peace to designate in the warrant any particular person to execute it. This was sufficiently done by the indorsement on the capias pro fine, naming appellant to perform, that duty. A citizen specially appointed under articles 278 or 979, C. C. P., to execute process, is, so far as the particular case is concerned, clothed with the same authority as a peace officer (O’Neal v. State, 32 Tex. Cr. R. 42, 22 S. W. 25), and has a right to carry a pistol (Jenkins v. State, 47 Tex. Cr. R. 224, 82 S. W. 1036). The capias pro fine, with the indorsement thereon, should have been admitted in evidence. It was a legitimate part of appellant’s defense. Whether he was in truth engaged in an effort to execute the process at the time he was found with the pistol was an issue of fact which should have been submitted to the jury under appropriate instructions. It is true he was without the limits of Titus county, but, if he was in good faith attempting to execute the capias with which he had been intrusted, he was on official business, and, in the absence of contrary proof, it must be presumed that he would have proceeded in a legal manner to effect it. Black v. State, 48 Tex. Cr. R. 63, 85 S. W. 1143.

The judgment must be reversed, and the cause remanded. 
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     