Clayton v. State

May 19, 1886
No. 4042
Reporters:
, ,
Before:
Hurt
Hurt, Judge.

This is a conviction for carrying a pistol. The proof is clear that appellant, at the ‍​‌‌​​​​​​​‌​‌​‌​‌​‌‌‌​‌​​​​‌‌​​​‌​​‌‌‌​​‌​‌​‌‌​‌​‌‌‌​‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌​‌​​​‌​​​‌​‌‌​‌‌​‌‌‌​‌‌‍time of carrying the pistol, was deputy sheriff of Pease county. Upon this point the court charged, in effect, that if appellant was a peace officer, and was acting as such, under a legal ‍​‌‌​​​​​​​‌​‌​‌​‌​‌‌‌​‌​​​​‌‌​​​‌​​‌‌‌​​‌​‌​‌‌​‌​‌‌‌​‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌​‌​​​‌​​​‌​‌‌​‌‌​‌‌‌​‌‌‍appointment, and that he was in this (Taylor) county, in the discharge of his official business, he should be acquitted; but if in pursuit of his private business, he should be convicted.

■ Counsel ‍​‌‌​​​​​​​‌​‌​‌​‌​‌‌‌​‌​​​​‌‌​​​‌​​‌‌‌​​‌​‌​‌‌​‌​‌‌‌​‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌​‌​​​‌​​​‌​‌‌​‌‌​‌‌‌​‌‌‍for appellant requested a charge to the effect that, if defendant was a deputy sheriff of any county of the State while carrying the pistol, he should be acquitted.

We are of the opinion ‍​‌‌​​​​​​​‌​‌​‌​‌​‌‌‌​‌​​​​‌‌​​​‌​​‌‌‌​​‌​‌​‌‌​‌​‌‌‌​‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌​‌​​​‌​​​‌​‌‌​‌‌​‌‌‌​‌‌‍that the rule stated in the requested charge is the law of the case. A deputy sheriff is a peace officer, and as such is excepted from the operation of Article 318, Penal Code. ‍​‌‌​​​​​​​‌​‌​‌​‌​‌‌‌​‌​​​​‌‌​​​‌​​‌‌‌​​‌​‌​‌‌​‌​‌‌‌​‌​‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌‌​‌​​​‌​​​‌​‌‌​‌‌​‌‌‌​‌‌‍This is expressly done by Article 319. The judgment is reversed and the cause remanded.

Reversed and remanded.