36 Tex. 638 | Tex. | 1872
The same questions are insisted upon by the appellant in each of these cases. The authority of Hewitt v. The State, and The State v. Wilburn, 25 Texas, 722 and 738, would seem to sustain the point made by the appellants, without close examination; but there is a very material difference.
In those cases, the offense charged was selling liquors without a license The offense did not consist in selling the liquor
But, in the cases now under consideration, the offense consists in carrying on or about the person a pistol, the said pistol being then and there a deadly weapon, contrary to law. If there be exceptions named in the statute, under which the carrying of the weapon would not be an offense against the law, this would be matter of defense, and the indictment need not negative any such possible defense. The offense against the law may be completely described without such negative averment.
But it is insisted the court erred in charging the jury that they might find the defendants guilty if the act was proven within one year preceding the finding of the indictment. Doubtless the court should have explained to the jury when the act under which the indictments were found, went into operation ; but the evidence shows conclusively that the acts complained of were perpetrated since the law went into force, and therefore the appellants could suffer nothing by the omission of the court to give the explanation. Such an explanation of the law should have been asked by defendants’ counsel in the court below; it is too late to raise the objection here, unless it were manifest to the court that the appellants had sustained some wrong or injury. The judgments in each of these cases will be affirmed.
Affirmed.
Evans, Presiding Judge, dissented.