
    BARNETT v. STATE.
    (No. 6177.)
    (Court of Criminal Appeals of Texas.
    March 23, 1921.)
    1. Criminal law <&wkey;365(l) —That defendant struck witness on the head with a pistol admissible in prosecution for carrying.
    In a prosecution for unlawfully carrying a pistol, the court did not err in permitting the state to prove by a witness that he was struck with the pistol on the head and rendered unconscious, and was also struck with a crutch in the hands of a person accompanying defendant, where the only time the state undertook to prove accused to be in possession of the pistol was during the difficulty in which such blows were struck, and it was all one transaction.
    2. Criminal law <&wkey;36l(I) — Excluding evidence explaining difficulty in prosecution for carrying pistol held error.
    In a prosecution for unlawfully carrying a pistol, where the court permitted the state to prove by witness that he was struck by the pistol on the head and rendered unconscious, and was also struck with a crutch in the hands of a person accompanying the defendant, it should have permitted the accused to prove how the difficulty in which the blows were struck came about, and that it was because of an insulting letter which accused’s companion claimed that the witness had written to his daughter.
    3. Weapons &wkey;>7, 17(3) — Court erred in not permitting defendant to show that he thought that he was an officer.
    In a prosecution for unlawfully carrying a pistol, the court erred in not permitting accused to prove that he had been appointed, dr thought he had been appointed and deputized, as city marshal, and was acting as such when he was charged with carrying the pistol, although such evidence did not show any legal appointment, since one who reasonably believed that he was appointed an officer, and exercised authority under that appointment, would not be guilty of violating the law in carrying a pistol.
    Appeal from Falls County Court; E. M. Dodson, Judge.
    Jim Barnett was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed and remanded.
    Nat Llewellyn, of Marlin, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100.

It appears from the evidence that appellant and one Smith went into a restaurant operated by a man by the name of Buis; that a difficulty occurred between Smith, and Buis, during which the appellant struck Buis over the head with a pistol. Smith was a crippled man, and was using crutches; they seem- to have figured in the difficulty.

Appellant complains that the court permitted the state to prove by Buis that he was struck by a pistol on the head and rendered unconscious, and because the state was permitted to prove that Buis was also struck with a crutch in the hands of Smith. The only time the state undertook to prove appellant in the possession of a pistol was during this difficulty, and it was all one transaction, and we can. see no error on the part of the court in permitting this evidence to be introduced. After this evidence was introduced appellant then desired to prove how the difficulty between Smith and Buis came about; that it was because of an insulting letter which Smith claimed that Buis had .written to his daughter. The court declined to permit appellant to introduce this testimony, and we would, in view of the lowest fine being given, reluctantly reverse a case for an error on the part of the court in this respect. In this case appellant was not upon trial for an aggravated assault, but simply for unlawfully carrying a pistol, and it would have thrown little light upon that charge to have developed how the difficulty arose in which the pistol figured. But, if upon another trial the details of the fight are shown, this offered evidence ought to be admitted.

Appellant offered to prove by W. J. Brewer, the city marshal of Rosebud, that he had appointed and deputized appellant to act in his place and stead as city marshal just prior to and at the time he was charged with carrying said pistol, and had instructed appellant that he would have the right in the discharge of his duties to carry the same, and that appellant had' been acting in said capacity, policing the town of Rosebud, and had made many arrests in that capacity, and that he was recognized by Brewer as marshal of the town. The trial judge qualified the bill of exceptions in that respect by stating that Brewer would have testified that a short time prior to the time appellant ,was charged with carrying a pistol he told him that he (Brewer) wanted appellant to help him; that he (Brewer) was busy guarding a building at night, and would not be on the street much in the daytime, and that he wanted appellant to look after things for him in the part of town where appellant worked, and that this is all that he ever did in' regard to deputizing appellant. Appellant liimself offered to testify that he had been verbally appointed deputy city marshal by Brewer, and had been acting in that capacity for several days; had made many arrests, and that he, in fact and in truth, thought he had been duly and legally appointed deputy city marshal; that at the time he was charged with unlawfully carrying the pistol he was acting upon his appointment with an honest belief that he had been legally appointed, and with no intention to violate the law, but with the intention to uphold it. and to execute the duties imposed upon him by the marshal of the city.

Appellant offered to prove by a number of witnesses that he had for two or three weeks been acting as marshal of the town. The trial judge refused to permit this testimony to be introduced; we presume upon the theory that it showed no legal appointment as deputy marshal, and therefore was no defense.

Appellant reserved the proper bills of exceptions, and presents them to this court for review. When we look to'the Civil Statutes we find the first sentence in article 809 provides :

“The marshal of the city shall be ex ofiicio chief of police, and may appoint one or more deputies; the appointment of which deputies shall only be valid upon the approval of the city council.”

It will be seen that this statute does not provide whether the appointment shall be in writing or may be made verbally, but they only become valid .when approved by the city council. In the instant case, there being no offer to prove that the city council ever validated the appointment of appellant, we may assume that in truth he never legally became deputy city marshal. We do not regard that so m'uch an issue as we do what the appellant himself thought about it. Ordinarily the intent of a person charged with unlawfully carrying a pistol does not become material; in other words, one who is in truth and in fact unlawfully carrying a pistol cannot excuse himself by saying that he did not intend to violate the law. Clopton v. State, 44 S. W. 173. But there is a long line of decisions in this state to the contrary, where the party claims to be acting in the capacity of an officer under the honest belief that he has been so authorized to act. In Blair v. State, 26 Tex. App. 387, 9 S. W. 890, the jury was instructed as follows:

“The jury are further instructed that if the defendant was, or reasonably believed himself to be, a deputy sheriff of any county in the state of Texas at the time and while carrying the pistol you should acquit him.”

The jury in that case found against defendant on that issue, but this court, speaking through Judge Hurt, used this language.

“On the other hand, though appellant was not in fact a deputy sheriff, if he honestly believed that he was, and carried the pistol because so believing, he would not be guilty. This proposition was very clearly submitted to the jury by special instructions prepared by counsel for appellant.”

See, also, Lyle v. State, 21 Tex. App. 153, 17 S. W. 425; Carroll v. State, 57 S. W. 94. So far as we have been able to ascertain, this line of authorities was never questioned until the opinion in the case of Johnson v. State, 73 Tex. Cr. R. 133, 164 S. W. 833, was handed down. The learned trial judge who tried the instant case evidently followed the Johnson Casé in excluding the testimony offered; in this respect he is not subject to any just criticism, as that appeared to be the last expression of this court upon the subject before him.

The defendant in the Johnson Case was a negro, and the constable, one Coe, went to defendant and deputized him, or at least the defendant thought he had deputized him, to go to the emancipation celebration and stay there during the day, and act in place of the constable and to keep the peace; that defendant in good faith believed the constable had a perfect legal right to confer upon him this authority to carry a pistol. Defendant offered to prove the foregoing facts, both by himself and the constable, but objection was sustained, and the majority of the court held the same was not error, basing the ruling on the proposition that the mistake of the defendant was one of law, and not one of fact, .and affirmed the ease. Judge Davidson dissented, and' reviews and cites many cases which it is not necessary for us to review here. As stated by Judge Davidson in the dissenting opinion:

“The proposition is that appellant carried the pistol in good faith, and did so with no intention of violating the law, and believed Mr. Coe had authority to summon or appoint him, and that he was acting in obedience to what he believed to be legal authority, apd, there being no purpose or intent to violate the law, he was entitled to have this issue submitted to the jury.”

We believe that the dissenting opinion of Judge Davidson in that case was correct, and followed the long line of cases cited by him, to some of which reference has been made supra, and that the opinion of the majority of the court was a departure from the holdings of this court theretofore, and that case will be overruled in so far as the announcements therein are in conflict with the views expressed in this opinion.

In the instant case we believe the court was in error in not permitting appellant to-prove the matters offered by him in evidence to show what he believed to be his authority for carrying the pistol. If he had been appointed deputy marshal by Mr. Brewer, or reasonably believed that be bad been appointed, and had been exercising authority under that appointment, he would not be guilty of violating the law in carrying a pistol, and we believe the evidence ought to have been admitted, and this issue submitted to the jury.

For the errors discussed, the judgment of the trial court is reversed, and the cause remanded. 
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