
    JONES v. STATE.
    (No. 6742.)
    (Court of Criminal Appeals of Texas.
    March 8, 1922.)
    f. Weapons <&wkey;l7(2) — Burden was on defendant to establish that he carried pistol in actual discharge of duties as peace officer. .
    Under Pen. Code 1911, art. 476, as amended by Acts 1918 (4th Called Sess.) c. 91, § 1, art. 476, the burden was on accused to establish his defense that he was carrying a pistol in the actual discharge of his official duty as a peace officer, and exclusion of evidence that defendant was appointed a deputy sheriff, and refusal to instruct that if he was or believed himself to be such officer he might lawfully carry a pistol, was not fatal error, in the absence of evidence that he carried the pistol in the actual discharge of his official duty.
    2. Weapons <&wkey;17(6) — Instruction to acquit if pistol could not be readily fired, and defendant was carrying it home without unnecessary deviation, held adequate.
    In a prosecution for unlawfully carrying a pistol, an instruction to acquit if there was a reasonable doubt as to whether the pistol could be readily assembled or fired, and defendant was carrying it home from his place of business without unnecessary deviation, held adequate.
    3. Weapons <&wkey;>l 7(4) — Evidence held insufficient to show defendant’s right to carry pistol.
    In a prosecution for unlawfully carrying a pistol, evidence held insufficient to show that defendant carried it as a peace officer in the actual discharge of his official duty, within Pen. Code 1911, art. 476, as amended by Laws 1918 (4th Called Sess.) c. 91, § 1.
    4. Weapons <&wkey;I7(4) — Evidence held sufficient to support conviction of carrying pistol.
    In a prosecution for unlawfully carrying a pistol, evidence held sufficient to support conviction.
    Appeal from Collingsworth County Court; C. C. Small, Judge.
    E. E. Jones was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    R. Q. Murphree and R. L. Templeton, both of Wellington, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The appeal is from a judgment condemning appellant to pay a fine of $100 for the offense of unlawfully carrying a pistol on and about his person.

From the state’s standpoint, appellant, on the 28th day of July, 1921, had a pistol on his person. He was seen with it in various parts of the town and in numerous places, among them the City Drug Store and the Wellington Motor Company Garage, where he took the pistol out of his pocket and exhibited it. He also exhibited it upon the street, and pointed it at the witness Morris. This fact was controverted, and, according to appellant’s theory and testimony, he had been town marshal until about a year previous to the date of the offense. He had the pistol at his place of business. He had taken it apart and was unable to replace the. mainspring. With that in his pocket he carried the pistol to his home, stopping at the various places, including the garage and the drug store mentioned. He believed himself to be a “traffic officer” of Collingsworth county under an appointment made in February preceding the offense in July. He had acted as such officer, made arrests, collected delinquent tax, and received pay from the commissioner’s court. It was upon the belief that he was “traffic officer” and the right as such officer to carry the pistol he had one in his possession at the time the offense is laid. Appellant testified that he was appointed traffic officer by a vote of the commissioner’s court; that he had made no bond n,or taken any oath as such officer.

The minutes of the commissioner’s court were introduced, which contained the following ;

“It having been made to appear to the court that a large number of automobile owners in Collingsworth county have failed^ to p'ay their automobile license for operating their cars in violation of law, it is the order of the court that B. E. Jones, marshal of the city of Wellington, be appointed traffic officer, and he is hereby directed to apprehend said violators and to collect said delinquent tax.”

The date o.f this order is February, 1921. The record shows that he had been paid at some time $18.27 as compensation for services rendered under the order mentioned. The appellant seems to have ceased to have been marshal of the town of Wellington in April preceding the time of the offense.

The county judge testified that the appellant was not appointed a traffic officer, but was appointed a special officer to assist the sheriff in collecting auto licenses, for which he was paid a part of the penalties as compensation ; that the appointment was only in connection with his duties as marshal. After giving this testimony and receiving the notation from the minutes of the commissioner’s court, the trial court withdrew all of the testimony on the subject, and directed the jury to disregard it. This is complained of, and complaint is also made to the failure and refusal of the court to instruct the jury, in substance, that if appellant was a civil officer, he might lawfully carry a pistol on and about his person, or, if he believed himself to be such an officer, the same result would follow.

In article 7012% (Complete Texas Statutes 1920) the authority is given for the appointment by the commissioner’s court of special deputy sheriffs for the purpose of enforcing the laws regulating the use of the public highways. An oath of office is required. See Acts of 1919, c. 127, § 1.

The offense is defined in article 475 of the Penal Code. In article 476, prior to its amendment (Laws 1918, 4th Called Sess. c. 91, § 1), it was said:

“The preceding árticle shall not apply to a person in actual service as a militiaman, nor to a peace officer or a policeman, or person summoned to his aid, nor to a revenue or other civil officer engaged in the discharge of official duty.” Act of April 12, 1871, p. 25.

See, also, Vernon’s Ann. Texas Penal Code, p. 210.

There are many decisions construing this provision. So far as we are aware, they are uniform to the point that it is incumbent upon the accused, when his possession of a pistol is shown, to prove that he was within one of the exemptions defined in article 476. See Hunter v. State, 73 Tex. Cr. R. 459, 166 S. W. 164; Corley v. State (Tex. Cr. App.) 33 S. W. 975; Ransom v. State, 73 Tex. Cr. R. 442, 165 S. W. 932; O’Neal v. State, 32 Tex. Cr. R. 42, 22 S. W. 25; Jenkins v. State, 47 Tex. Cr. R. 224, 82 S. W. 1036; Brown v. State, 51 Tex. Cr. R. 423, 102 S. W. 406; Patton v. State, 61 Tex. Cr. R. 352, 135 S. W. 556.

It has also been held that one acting under a mistake of fact and under the honest belief that he was an,officer within the exemptions named should be exc.used. Blair v. State, 26 Tex. App. 387, 9 S. W. 890; Lyle v. State, 21 Tex. App. 153, 17 S. W. 425.

There are also cases outlining the circumstances under which such belief would become a question of fact. Patton v. State, 61 Tex. Cr. R. 352, 135 S. W. 556; Ransom v. State, 73 Tex. Cr. R. 442, 165 S. W. 932. The statute is also construed to confine the exemption as applied to a “civil officer” to occasions when he was in the discharge of his official duties. West v. State, 26 Tex. App. 99, 9 S. W. 485; Shannon v. State (Tex. Cr. App.) 65 S. W. 1065; Baker v. State, 53 Tex. Cr. R. 29, 108 S. W. 684; Featherston v. State, 35 Tex. Cr. R. 615, 34 S. W. 276, 938. A collation of the decisions may be found in Vernon’s Ann. Texas Penal Code, p. 211. Not so with peace officers. Tippett v. State, 80 Tex. Cr. R. 373, 189 S. W. 485. A deputy sheriff is classified as a peace officer. Code of Crim. Proc. art. 43; Cyc. of Law & Proc., vol. 30, p. 1327. We are referred to the statute and to the decisions construing it in support of appellant’s view. Apparently, the amendment to article 476 by the acts of 1918 (4th Called Session) c. 91, § 1, so changed that article as to render inapplicable many of the decisions construing it before the amendment. Upon the subject in hand, the amendment reads thus:

“The preceding article shall not apply to a person .in actual service as a militiaman, nor to any peace officer in the actual discharge of his official duty.”

As it now reads, the exemption applies to a peace officer only when in the actual discharge of his official duty. This language was in the old statute, but was not applied to a peace officer; and it was held that where one to whom it did apply would avail himself of it, he must-prove the facts bringing his case within its terms. Featherston v. State, supra.

Viewing the case in hand in the light of the amended statute, the importance of the evidence, the exclusion of which is complained of, and the failure to give the mentioned instruction to.the jury, would depend upon the existence of evidence bringing the appellant’s case within the terms of the statute; that is to say, evidence tending to show that when carrying the pistol about his person he was in the actual discharge of Ms official duty as a peace officer. In our judgment there is no such evidence revealed by the record. Shannon v. State (Tex. Cr. App.) 65 S. W. 1065; Baker v. State, 53 Tex. Cr. R. 29, 108 S. W. 684. If in this we are correct, the action of the court complained of cannot be made the basis for reversal.

Upon the defenses which did arise from the evidence, the jury was instructed in a manner adequate to secure to the appellant his rights. That is to say, in an appropriate language the jury were told that if the pistol, at the time it was carried, was in such a condition that it could not be readily assembled or fired, and if upon this subject they entertained a reasonable doubt, an acquittal must result, and in the same terms they were likewise told that if the appellant was carrying the pistol from his place of business to his residence, pursuing his course without unnedessary deviation, an acquittal must follow.

The appellant admits in his testimony' that en route to his home he stopped at the two places, 'making explanation for so doing, and the state’s testimony shows that while at one of them he exhibited the pistol, and other testimony of the state is to the effect that on the street he exhibited the pistol, and, using profane language, pointed it at a pedestrian. The facts, as above stated, did not raise an issue touching his right at the time, under the exemptions named in article 476, to carry tlie pistol, and in rejecting the other defense the verdict of the jury is not unsupported by the evidence.

Other questions raised have been carefully examined. A review of them is deemed unnecessary; suffice it to say that we perceive no error which requires a reversal of the judgment. It is therefore affirmed. 
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