W. S. Blair v. The State, 26 Tex. Ct. App. 387

Hurt, Judge. This conviction was for unlawfully carrying a pistol. Appellant lived in Kinney county, when found with the pistol. On the trial the accused introduced in evidence this paper: Del Rio, Texas, April 3, 1887. The State of Texas, ) County of Val Verde. j Know all men by these presents that I, W, H. Jones, sheriff of Val Verde county, has appointed W. S. Blair deputy sheriff in and for Val Verde county. W. H. Jones, Sheriff Val Verde.

The record shows that appellant had left Yal Yerde county, where he was appointed deputy sheriff, and had moved into Kinney county; that he had gone into business as clerk of a mercantile establishment, and had been in business some seven or eight months before he was found with the pistol.

When the sheriff of Kinney county found him with the pistol and arrested him there was no pretense that he was an officer, and hence had the right to carry the pistol. “ Sheriffs shall have power by writing to appoint one or more deputies for their respective counties, to continue in office during the pleasure of the sheriff, who shall have power and authority to perform all the acts and duties required of their principals; and every person so appointed shall, before he enters upon the duties of his office, take and subscribe the oath of office prescribed by the Constitution, which shall be indorsed on his appointment, together with the certificate of the officer administering the same; and such appointment and oath shall be recorded in the office of the county clerk and deposited in such office.” (Rev.

Stats., art. 4520.) Evidently appellant was not a deputy sheriff and could claim no authority to carry the pistol by virtue of the paper introduced in evidence. Opinion delivered November 14, 1888. The special instructions requested by the county attorney and given by tbe court, in effect, informed the jury that appellant was not legally appointed deputy sheriff. In this they contained the law and were properly given to the jury. The State having proved the carrying of the pistol by appellant, efe,, it devolved upon him to show authority, or facts from which he might reasonably infer authority, to carry the same.

To this effect were the jury also instructed. In this there was no error. 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.

But it is contended by counsel for appellant that the instructions given at the instance of' the county attorney, and those submitted at tbe request of appellant’s counsel are in conflict, and as appellant excepted to the instructions given at the request of the county attorney at the time given, the judgment must be reversed. If there be conflict tbe judgment must be reversed. But there is no conflict in the charge of the court when taken as a whole; hence the judgment should not be reversed on this ground. The proof was evident that appellant carried the pistol as charged. He must justify.

This he attempted to do by tbe above appointment by the sheriff of Val Verde county. Jones’s commission was worthless, and conferred no authority to carry the pistol. But, though void, if appellant honestly believed himself to be a deputy sheriff, he would not be guilty. Here we have a question of fact, and this fact was clearly submitted to the jury for their solution, and they solved it against appellant. In this we think they did right. The judgment is affirmed.

Affirmed. [Note.—The record in this case was filed at the Austin branch of this court, at the term of 1888, but not being disposed of at that term, was transferred to the Tyler branch. It is now reported under its Austin file number.]