
    RANSOM v. STATE.
    (Court of Criminal Appeals of Texas.
    April 8, 1914.)
    1. Weapons (§ 11) — Carrying Weapons — Persons Exempted — Peace Oeeicers.
    Pen. Code 1911, art. 476, 'providing that the preceding article, forbidding the carrying of a pistol, shall not apply to a peace officer, does not authorize a deputy sheriff to carry a pistol when outside the county of his appointment and not on official business.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. § 11.]
    2. Weapons (§ 11) — Carrying Weapons — Persons Exempted — Peace Oeeicers.
    Under Rev. St. 1911, art. 7125, authorizing sheriffs to appoint one deputy for each justice precinct in addition to the precinct where the county site is situated, where a sheriff appointed two deputies in such a precinct, one of whom was the active deputy, who made arrests and served process, the appointment of the other was illegal, and he acquired no right by virtue of such appointment to carry a pistol, under Pen. Code 1911, art. 476, authorizing peace officers to carry a pistol.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. § 11.] ■
    3. Criminad Law (§ 32) — Defenses—Ignorance oe Law.
    A deputy sheriff’s belief that he had a right to carry a pistol in a county other than that of his appointment was a mistake of law, and not of fact, and did not relieve him from criminal liability.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 37; Dec. Dig. § 32.]
    4. Weapons (§ 17) — Evidence—Relevancy.
    On a trial for carrying a pistol, evidence as to an altercation between accused, after he had given bail for his appearance and left the jail, and a person who followed him to get him to return to attend to some minor matter, should have been excluded, and its admission is ground for reversal, where the jury, in addition to a fine, assessed the punishment at imprisonment in the county jaü for 60 days.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. § 17.]
    Appeal from Harris County Court at Law; Clark C. Wren, Judge.
    Henry L. Ransom was convicted of unlawfully carrying a pistol, and be appeals.
    Reversed and remanded.
    Lane, Wolters & Storey, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the-State.
    
      
      For other oases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100 and 60 days’ imprisonment in the county jail.

The first proposition presented for our consideration is the proper construction of Pen. Code, art. 476, which provides that the article of the statute which prohibits the carrying of a pistol shall not apply to a person in actual service as a-militiaman, nor to a peace officer or a policeman, or a person summoned to his aid, nor to a revenue or other civil officer engaged in the discharge of his official duty.

Appellant introduced in evidence the appointment made by M. L. Wooley, sheriff of Ft. Bend county, Tex., wherein he on April 28,1913, appointed appellant a deputy sheriff of Ft. Bend county. Appellant was charged with carrying the pistol in Harris county in October, 1913, and testified: “On the occasion when I came over here, I did not come on any official business. I came on process issued out of the criminal district court of Harris county. I was subpoenaed as a witness. I did not come over here to serve any process. Up to that time I had never served any process for the sheriff of Ft Bend county. He had never sent me any at all. I never received any compensation from the sheriff of Ft. Bend county. I went over there and formally took the oath of office. I did not make bond, because the sheriff’s bond was my bond. The sheriff’s bond is good for his officers, his deputies. He did not require me to make a bond. I did not make a bond. I have already stated that I did not serve any process for the sheriff of. Ft. Bend county. I never received any compensation for my services. I would have received compensation if I had served papers, I guess; never made any arrest over there; never attempted to make any arrest here since I was a deputy sheriff of Ft. Bend county. Over there I have gone with my brother on two or three occasions to make arrests; never made any arrests. We were after a negro for some time for murder, and we had information he was at a house there, and we went there and found he was not there. The sheriff instructed me to assist my brother; that if my brother needed any assistance he would call on me. I have already told you that X did not make any arrests. Mr. Wooley is the sheriff over there. I don’t know how many deputies he has in my district. He has one other deputy besides myself in my precinct. Myself and brother are deputies in that end of the county, up in there in that precinct. That is not the justice of the peace precinct in which the county seat is located.”

It is thus seen that appellant was not in Harris county on official business, and admits he had the pistol on his person in Harris county. The case of Clayton v. State, 21 Tex. App. 343, 17 S. W. 261, supports his contention that a legally appointed deputy sheriff has a right to carry a pistol anywhere in the state, whether on official business or not; but we do not think this a proper construction of article 476, but believe the correct construction is announced in the ease of Ray y. State, 44 Tex. Cr. R. 158, 70 S. W. 23, wherein tile court held: “The construction placed on said article is that the statute places no qualification on the clause with reference to peace officers, but authorizes every peace officer or policeman everywhere and at all times to carry a pistol. We do not believe this is a proper interpretation of the statute. A person may be a peace officer in one section of the state and not in another, but is simply a local peace officer; and while in his bailiwick he is a peace officer, but when he leaves there and goes to some other section he cannot perform the functions of his office, and he has no more authority than any other private citizen. Of course, when he goes outside of his immediate jurisdiction to perform some duty in some other part or section, which he is authorized under the law to do, his official character remains with him; but not so in the absence of such official duty.” It is true that in this latter ease it is said that the Clayton Case does not support the contention made; but it is evident that the court was mistaken, for it does support the contention made in the Bay Case and in this case. But as hereinbefore stated we do not think it a correct construction of the statute. Appellant, nor the sheriff who appointed him, is not authorized in law to make an arrest or serve any process in Harris county, and it is only within the limits of the prescribed territory where they are peace officers, where they are authorized to make arrests and serve process, that the unlimited right to carry arms is given, and when not within the limits of that territory, unless on official business, they have no more right to carry arms than any other citizen.

It further appears from the testimony of appellant that the sheriff of Ft. Bend county had appointed two deputies in the justice precinct in which appellant lived and held his deputyship; that his brother was the active deputy, who made arrests and served process for the sheriff. If this is true, then under the provisions of article 7125 of the Bevised Statutes the appointment of appellant would be illegal, and he would not have the right under this appointment to carry a pistol in Ft. Bend county, much less in Harris county. The appointment of the sheriff in violation of the law, which only gives him authority to appoint one deputy and no more in justice precincts outside the precinct in which the county seat is situate, would confer no authority on appellant. A practice had grown up in some counties for the sheriff to appoint all his friends deputies who desired to carry pistols, and who never did and were never expected to perform any official act, and the Legislature to remedy this evil passed said article of the statute, and an officer has no more right under the provisions of the law than any other citizen has to violate the law of his state. •

Another contention is made that, if appellant honestly believed he had the right to carry the pistol in Harris county under an appointment of the sheriff of Ft. Bend county, he should be acquitted. This would be a mistake of law, and not a mistake of fact, and the court did not err in overruling this contention.

However, there is one bill of exceptions in the record which we think presents error. The record discloses that appellant had a fight in the restaurant of Dudley Bros., in Houston, in Harris county, and at this time had a pistol on his person. He was arrested and carried to the city jail, where he placed money in the hands of the officer in an amount that the officer desired as bail for his appearance. He then turned and left the jail, and after doing so Mr. Horton pursued him to get him to return to attend to some minor matters. He declined to return, and an altercation occurred between him and Mr. Horton. This altercation, and all that took place, was admitted over appellant’s objection. In this we think the court erred. Had the 'minimum punishment been assessed, we would not reverse the ease; but inasmuch as, in addition to the monetary fine, he was given as punishment 60 days in the county jail, we cannot say that this latter testimony did not have its weight with the jury in causing them to assess more than the minimum punishment; and as it was error to admit the testimony, and we cannot say it was harmless error, the judgment is reversed, and the cause remanded.  