[ Back | Home ]
[Cite as Lewis v. State, 7 Tex. App. 567
Austin Lewis v. The
Weapons--Indictment.--The Revised Code does not, as did the previous law
on this subject, embody in the enacting clause the exceptions prescribed; and
therefore there is now no occasion for the indictment or information to negative
the exemption of the defendant under the exceptions. They are matters for the
defence to prove.
2. Burden of Proof.--Though
the burden of proof never rests on a defendant in a criminal case, yet when the
inculpatory facts have been proved it is incumbent on him to prove any facts on
which he relies for exculpation, unless they appear in the evidence against
3. The Right to keep and bear
Arms in defence of one's self or of the State affords no defence against
an indictment for carrying prohibited weapons.
Appeal from the County
Court of De Witt. Tried below before the Hon. O. L. Threlkeld, County Judge.
The opinion sufficiently discloses the case.
W. R. Friend, for the appellant.
Thomas Ball, Assistant Attorney-General, for
Clark, J. Under the
provisions of our present Penal Code regulating the keeping and bearing of
deadly weapons, it is unnecessary in an indictment to allege more than that the
defendant did unlawfully carry upon his person, etc., the forbidden weapon.
Under former laws, the exceptions were contained in the enacting clause, and it
was requisite that each should be substantially negatived. It was never
necessary to prove these negative averments, they being always held as matters
of defence. The State v. Duke, (p.568)42 Texas, 462; Summerlin v. The State, 3 Texas Ct. App. 444; Leatherwood v. The State, 6 Texas Ct. App. 247.
While the burden of proof never rests upon a defendant in a criminal
case in the sense in which it is understood with reference to civil causes, yet
when the facts and circumstances have been proved which constitute the offence
it devolves upon the accused to establish the facts and circumstances on which
he relies to excuse or justify the prohibited act or omission, unless they
appear in the evidence against him. Penal Code, art. 51;
Leonard v. The State, ante, p. 417.
In the case at bar, the State was only required to prove the venue as
laid, and the act of carrying upon the defendant's person the prohibited weapon
at some time within the period of limitation. If the defendant was a soldier or
a peace-officer, etc., or was at the time on his own premises, or travelling, or
in imminent danger, such fact was peculiarly within his own knowledge, and he
should have shown it by the evidence either of his own witnesses or those of the
No attempt was made to do this, but his defence is rested upon the
ground that the mere fact that he had a pistol on his person in the county of De
Witt at the time alleged did not place him beyond the constitutional privilege
"to keep and bear arms in defence of himself or the State." We think it did, in
view of the regulations prescribed by law for bearing arms, with a view to
prevent crime. Bill of Rights, sect. 23.
The judgment is affirmed.