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[Cite as State v. Clayton, 43 Tex. 410
The State v. Jack
1. Indictment--Carrying deadly
weapons.--An indictment which charges one with carrying a deadly weapon,
and alleges that he was neither a peace officer nor a policeman, negatives the
existence of the exception in his case which would have existed had he been a
2. Indictment.--Such an
indictment, if it alleges that at the time charged the defendant carried the
deadly weapon on his person, negatives the existence of the exception
created by statute in favor of one traveling in the State and carrying arms with
indictment charging an offense created by a statute which excepts from its
operation those who, under circumstances specified, do the act which would
otherwise be penal, must show by negative averments that the defendant is not
within any of the exceptions mentioned in the statute.
proclamation--Carrying deadly weapons.--The power of the Governor to
exempt certain counties from the operation of the law against carrying deadly
weapons is not exhausted as to the inhabitants of a particular county by the
issuance of his proclamation exempting them from the operation of the law, but
he may, by a second proclamation, revoke the first and make such county again
subject to the operation of the law.
Appeal from Lampasas. Tried
below before the Hon. E. B. Turner.
The 1st section of the act of April 12, 1871,
which makes it an offense for one to carry deadly weapons, except in the lawful
defense of the State, or when fearing, from reasonable grounds, an unlawful
attack, or unless one be a militiaman on duty, or a peace officer or policeman,
closes with the following proviso: "Provided, That this section shall not
be so construed as to prohibit any person from keeping (p.411)or bearing arms on his or her own premises or at his or
her own place of business, nor to prohibit sheriffs or other revenue officers
and other civil officers from keeping or bearing arms while engaged in the
discharge of their official duties, nor to prohibit persons traveling in the
State from keeping or carrying arms with their baggage; Provided further,
That the members of the Legislature shall not be included under the term 'civil
officers,' as used in this act."
The 4th section of the same act is as follows:
"Sec. 4. This act shall not apply to nor be enforced in any county of the State
which may be designated in a proclamation of the Governor as a frontier county,
and liable to incursions of hostile Indians."
The Governor issued his proclamation on the 13th of April, 1871,
exempting the county of Lampasas, where the offense is charged to have been
committed, from the operation of the law. Afterwards, on the 10th of February,
1873, the Governor issued another proclamation revoking the first, and declaring
that the county of Lampasas was subject to the provisions of the act. The
offense was charged to have been committed on the 27th of December, 1873.
George Clark, Attorney General, for the
Justice.--This is an indictment against Jack Clayton, charging him with a
violation of the act of April 12, 1871, to regulate the
keeping and bearing of deadly weapons.
The indictment charges that Clayton did "unlawfully carry on and
about his person a certain pistol, he then and there having no reasonable
grounds for fearing an unlawful attack on his person, nor was he then and there
either a militiaman in actual service, or a peace officer, or a policeman, nor
was he then and there on his own premises or at his own place of
The court sustained the defendant's motion and quashed the indictment
on the ground that it discloses no offense known to the laws of this State. The
district attorney excepted, and gave notice of appeal.
The only question in the case is as to whether or not the indictment
is sufficient as charging an offense under the first section of the act referred
In the case of Duke v. The State, decided at Galveston at the
last term, we held that the indictment must show by negative averments that the
defendant is not within any of the exceptions of the statute applicable to the
particular violation complained of. It was further said in that case that
substantial compliance with the statute was all that was required.
We are of opinion that the indictment is sufficient as charging the
offense of carrying a pistol on the person. It negatives that the defendant had
any reasonable grounds for fearing an unlawful attack on his person, or that he
was carrying the pistol for the lawful defense of the State as a militiaman, or
as a peace officer or policeman, or that he was on his own premises, or at his
own place of business. The exception in favor of civil officers is embraced by
the averment that the defendant was not a peace officer or policeman. So the
averment that the defendant carried the pistol on or about his person implies a
denial that it was kept or carried with his baggage.
The judgment is reversed and case remanded.
Justice.--The judgment was reversed in this case at a former day of the
term, since which time it has been communicated to us that the indictment was
set aside by the court below on exceptions, not for any defect in it, but
because the county of Lampasas was exempt from the operation of the law relating
to the carrying of firearms, under which the indictment was found; that it
(p.413)having been exempted by the proclamation
of the Governor, issued in April, 1871, in pursuance of the statute creating the
law, the power given to the Governor by the law was completely performed and
exhausted by that act, and his subsequent proclamation, in February, 1873,
revoking the exemption of that county, and requiring thenceforward the
enforcement of the law therein, was null and void, and could not have the effect
of removing the exemption once made, and that therefore the law was not in force
in Lampasas county.
The clause of the law of 1871 relating to the power and action of the
Governor as to the exempting of certain counties from its operation, is as
"This act shall not apply to nor be enforced in any county of the
State which may be designated in a proclamation of the Governor as a frontier
county, and liable to incursions of hostile Indians." (Paschal's Dig.,
Without this clause the law would certainly be in force in Lampasas
county as well as in any other.
If the Legislature can confer such a power on the Governor to
designate by his proclamation certain counties in which prosecutions for
infractions of this law shall not be instituted and maintained in the courts, on
account of the incursions of Indians, it is but carrying out the spirit and
object of the law for him to continue to exercise that power of designation from
time to time, accordingly as the reason and necessity for its exercise may or
may not exist during the existence of the law. The discretion is vested in the
Governor to designate the exempted counties, without any express limitation,
either in the number of proclamations or the times of issuing them, or the
manner in which the exemption shall be made in the proclamation.
It therefore may be done by a proclamation revoking the exemption,
where the necessity for it has, in his judgment, ceased to exist, as well as by
a new designation of (p.414)exempted counties
in a proclamation which left the county of Lampasas out of the list.
We conclude, then, that the law was in force in Lampasas county when
this indictment was found, and that there is no reason found in the matters
called to our attention for changing the judgment already rendered in this