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[Cite as Lewis v. State, 2 Tex. App. 26
Frank Lewis v. The
1. Deadly Weapons.--The
act of April 12, 1871, "to regulate the keeping and bearing
of deadly weapons," was not enacted to prohibit the keeping and bearing of the
weapons therein mentioned, but merely to regulate the manner in which they are
to be carried and used. The carrying of a pistol is not of itself a violation of
the act, but becomes such when carried in a manner and under circumstances
2. Same.--The said act
prohibits a horse-back traveler from carrying a pistol in his hands, or belted
around him, unless he is exempted from the penalties of the act by some other
exception than that relating to persons traveling.
Appeal from the Criminal
Court of Paris, in the county of Lamar. Tried below before the Hon. J. Q. Chenowith.
The opinion discloses the material facts.
Bennett, Ballinger & Bennett, for the
H. H. Boone, Attorney General, and W. B.
Dunham, for the State.
Winkler, J. The indictment
charges, "that, on the 16th day of January, one thousand eight hundred and
seventy-six, in the county of Lamar, in said state of Texas, with force and
arms, one Frank Lewis did unlawfully carry about his person a certain pistol;
the said Frank Lewis, at the time and place aforesaid, had no reasonable grounds
for fearing an unlawful attack on his person, and that said attack was immediate
and pressing; and, at the time and place aforesaid, the said Frank Lewis was not
carrying said pistol about his person for the lawful defense of the state, as a
militiaman in actual service, nor was he a peace officer, or a policeman engaged
in the lawful discharge of his official duties; and that the said Frank Lewis,
at the time and place aforesaid, was not a sheriff engaged in the lawful
discharge of his official duties, nor was he a civil officer of any (p.27)kind whatsoever; and the said Frank Lewis, at the
time and place aforesaid, was not on his own premises nor at his place of
business, and at the time and place aforesaid the said Frank Lewis was not a
traveler in this state."
The defense relied upon in the court below--as far as we can
determine from the character of the evidence introduced, and from the charge of
the court as given to the jury, and the charges asked by the defendant's counsel
and refused by the court, and from the argument before this court--was that it
is not an offense against the law for an individual, being a traveler in this
state, to carry a pistol on or about his person.
On the trial below, the defendant's counsel requested the court to
instruct the jury as follows:
"The court instructs the jury that, if they believe from the
evidence that the defendant, Frank Lewis, was traveling at the time he was
seen with the pistol, then he was authorized to carry arms about his person,
and he was not compelled to carry his arms in his baggage. 2d. A person
traveling on horseback usually carries his baggage in saddle-bags or pockets,
and he is not compelled to carry his arms in his saddle-bags, where, upon an
emergency arising, he would be unable to use it."
This charge was refused, and the court charged the reverse, as
"Although you may believe from the evidence the defendant was a
traveler, if at the same time you believe from the evidence that the pistol
was carried upon the person of the defendant, if not otherwise exempted from
the penalties of the law, the fact that he was a traveler will be no
exemption, and you will find your verdict accordingly."
To this charge the defendant's counsel took a bill of
The refusal to give the charges asked by the defendant, (p.28)and the correctness of the charge as given and
excepted to, are among the grounds set out in the motion for new trial; and,
together with the ruling of the court refusing a new trial, are assigned as
The indictment is based upon the act of April 12,
1871, entitled, "An act to regulate the keeping and bearing of deadly
weapons," the first section of which makes it a misdemeanor for any
person to carry on or about his person, saddle, or in his saddle-bags, any
pistol, or other weapon mentioned in the section, "unless he has reasonable
grounds for fearing an unlawful attack on his person, and that such ground of
attack shall be immediate and pressing; or unless having or carrying the same
for the lawful defense of the state, as a militiaman in actual service, or as a
peace officer or policeman;" with the proviso "that this section shall
not be so construed as to prohibit any person from keeping 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
In Maxwell v. The State, 38 Texas, 171, it was held "that
the act to prohibit the carrying of deadly weapons was not intended to prevent
persons traveling in buggies or carriages upon the public highway from placing
arms in their vehicles and carrying them from place to place for an innocent
purpose. We can hardly conceive that a traveler would be compelled to lock up
his arms in his trunk or valise, where they would be useless to him if
This case, and the reasoning of the court, are relied on as being
decisive of the present case. The case of Maxwell, however, was unlike the
present. There, it seems, the accused was carrying his pistol in his buggy,
whilst in the (p.29)present case one witness
says he "saw the defendant with a pistol in his hand." Another witness says "he
had a pistol belted round him; it was carried in the usual way such pistols are
carried." These witnesses are uncontradicted. Neither the decision nor the
reasoning in that case apply to this.
The statute prohibits all persons, except those exempted from its
penalties therein, from carrying a pistol, or the other weapons named, either on
or about his person, or saddle, or in his saddle-bags. It does not, however,
"prohibit persons traveling in this state from keeping or carrying arms with
their baggage." The statute is not intended to prevent keeping and bearing arms,
but merely to regulate the manner in which they are to be carried and used.
In the cases of The State v. Duke, 42 Texas, 455, and The State v. Clayton, 43 Texas, 410, the provisions of
the statute in question seem to have been more fully discussed and maturely
considered than had previously been done before the court of last resort in
Texas. In the latter case the indictment was similar to the one now under
consideration. The indictment was quashed in the district court, and the state
appealed, when the judgment of the district court, quashing the indictment, was
reversed and the cause remanded.
Reeves, J., delivering the opinion of the court, says: "In the case
of Duke v. The State, 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." The rehearing in that case was on a proposition not made by the
record in this case.
In The State v. Duke the law was held to be constitutional.
The rule requiring the indictment to state the negative conditions mentioned,
and the reasons therefor, (p.30)were laid down
with care and it was then said, "the reason of this rule is that such exceptions
constitute a part of the description of the offense, and, unless they are
negatived, no offense is stated. See the case and authorities cited.
The carrying of a pistol is not of itself an offense against the
law, but the act becomes an offense against the law whenever it is carried in
the manner and under the circumstances prohibited by the statute.
The court correctly charged the jury that, if the defendant was not
otherwise excepted from the penalties of the law, the fact that he was a
traveler would not excuse him, and did not err in refusing the charges asked on
behalf of the defendant, or in refusing a new trial.
The judgment of the criminal court of the city of Paris is