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[Cite as Waddell v. State, 37 Tex. 354
C. W. Waddell v. The
On the trial of an indictment for carrying deadly
weapons, the proof was that the accused purchased two pistols in the town of C.,
and, for the purpose of obtaining balls for the pistols, he carried them from
the store where he purchased them to one or more places where ammunition was
sold, and from thence to his home, some fifteen miles distant. Held, that
(p.355)these acts did not constitute a
violation of the spirit of the law regulating the keeping and bearing of deadly
weapons, and the court below erred in instructing the jury that there was a
violation of the law. There can be no violation of a criminal law without an
intention to violate it.
Appeal from Houston. Tried
below before the Hon. L. W. Cooper.
The facts of the case are stated in the opinion and headnote.
No brief for the appellant has reached the hands of
William Alexander, Attorney-General, for the
Walker, J. We are
authorized to presume that by the act of April 12th, 1871,
entitled "An act to regulate the keeping and bearing of deadly weapons,"
the Legislature intended to suppress the absurd and vicious practice of bearing
upon the person such weapons as pistols, dirks, daggers, slung-shots,
sword-canes, spears, brass-knuckles, and bowie knives. But we find nothing in
the act which, rightly construed, takes away any right or abridges any
reasonable and lawful privilege of the citizen. But if wrong constructions are
placed upon this act, and absurd and vexatious prosecutions for acts not within
the denunciation of the law are tolerated and entertained by the courts, the law
itself must become unpopular, even odious, to a free people, and the Legislature
will be driven by public indignation and protest to repeal the law. We believe
this would be a great public misfortune, as the law, in itself, when properly
understood and rightly administered, is wise and salutary.
We do not think the evidence in this case proves an offense against
the spirit of the law. The court charged the jury in these words: "The buying of
a pistol in the town of Crockett would not be a violation of the law, but
carrying it over the town of Crockett, and from store to store, or miles away
(p.356)from Crockett to his residence, would be
a violation of the law."
The evidence shows that on the 23d day of March, 1872, the appellant
purchased two pistols in the town of Crockett, and that he carried the pistols
from the place where he purchased them to one or more places where ammunition
was sold, for the purpose of obtaining balls to fit the calibre of the pistols;
and although it is not distinctly proven, it may be inferred from the evidence,
that he carried the pistols to his home, some fifteen miles from the town of
There can be no violation of a law without an intention to violate
it, and the defendant is not shown to have entertained any such intention; he
had a perfect right to purchase the arms, and for the purpose of obtaining
ammunition to suit them, he had a right to take them with him, to any place
where such ammunition was sold; and then he had a perfect right to take them to
his home for any lawful purpose he may have intended to serve with them, such as
guarding his house against thieves and robbers, defending himself and family
against murderers or assassins.
The law distinctly says, under the proviso contained in the first
section, 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 persons traveling in the State, from
keeping or carrying arms with their baggage.
Persons living remote from their county seats or market towns, where
a day's journey going and coming is required, and where often, from the
necessities of business, even a portion of the night is used, should be regarded
as within the meaning of the proviso.
We think the charge of the court in this case was erroneous, and we
are further of the opinion that the evidence falls far short of proving a
violation of the statute.
The judgment is therefore reversed and the cause dismissed.
Reversed and dismissed.