
    PATTON v. STATE.
    (Court of Criminal Appeals of Texas.
    March 1, 1911.
    Rehearing Denied March 22, 1911.)
    Weapons (§ 11) — Carrying Weapons — Justification — Appointment as Depute Sheriff.
    One cannot justify the carrying of arms on his appointment as special deputy sheriff, it having been given, when the sheriff had more deputies than the law allowed, on his statement to the sheriff that his father had been having trouble with neighbors, and that he wanted a commission to protect his father, and the appointment being expressly without pay and without authority to serve papers, and he never having taken any oath of office, and the commission not being recorded; this being a mere subterfuge.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. § 11.]
    Appeal from Dallas County Court at Law; W. M. Holland, Judge.
    Lawrence Patton appeals from a conviction.
    Affirmed.
    Lively, Nelms & Adams, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. &' Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was charged by information and complaint with unlawfully carrying arms, in the county court of Dallas county at law. Upon a trial before the court, without a jury, he was adjudged guilty, and his punishment assessed at a fine of $100.

There is but one ground alleged in the motion for a new trial; it being that the judgment of the court is contrary to the law and the evidence and is not supported by the law and evidence. The testimony shows that defendant had a pair of brass knucks, and knocked a man down with them three times. He was not in discharge of any official duty. The sheriff testified that defendant came to him, and stated that there was a good deal of petty thievery in his neighborhood, and he desired to be appointed a deputy that he might apprehend the thieves. He took a commission blank, erasing the word “lawful” before deputy, and inserting the word “special.” Defendant never took any oath of office, and he did not' record the commission he gave him. He was to pay him no salary, and informed him he must not serve any papers.

The defendant testified that he did not tell the sheriff there was any thievery going on, or that he would apprehend thieves, but that he told the sheriff he and his father had been having some trouble with some of their neighbors, and wanted a commission to protect his father. “I was not paid any salary, and was told I could not serve papers. I never took any oath of office, and did not record the commission given me.” He further said: “At the time of my arrest, when I was found with the brass knucks on, I had just knocked down Trigg three times. He and my father were fighting.” It was also shown that the sheriff had more deputies than the law permitted.

We are of the opinion that when the sheriff informed defendant that he could not serve papers, and was authorized to do no act which an officer is required to do, and defendant himself saying that his only object was to protect himself and his father, and that he knew he had no authority to do other than protect himself and his father, common sense should have taught him that he was not an officer in a legal sense. The law cannot wink at such subterfuges to violate its plain provisions. See opinion by Presiding Judge Davidson in Shannon v. State, 65 S. W. 1065.

The judgment is affirmed.  