Alexander v. State , 27 Tex. Ct. App. 533 ( 1889 )

Willson, Judge.

It is not a valid objection to an indictment or information that it contains several counts charging different misdemeanors. (Waddell v. The State, 1 Texas Ct. App., 720; Gage v. The State, 9 Texas Ct. App., 259.) In this case the information charges three different misdemeanors in three separate counts, and is not bad for duplicity. The counts are informal, but it is nevertheless plain that they were intended for, and are substantially separate counts, and should not be construed as constituting but a single count. It is not required that each count should conclude “against the peace and dignity of the State,” but only that the indictment or information as a whole should so conclude. (West v. The State, ante.) The exceptions to the information were properly overruled.

Opinion delivered May 8, 1889.

This conviction is upon the second count in the information, which charges the offense defined in article 320 of the Penal Code. It was proved and not controverted that the defendant went into a place where persons were assembled for amusement, carrying about his person a pistol. His defenses were that the place where he carried the pistol was his own premises, and that he had reasonable ground for fearing an unlawful attack upon his person, etc.

With respect to the first defense this court has held that no person, unless he be a peace officer, can go into an assembly of people such as is named in article 320 of the Penal Code, and carry about his person a prohibited weapon, without violating the law, and not even the owner of the premises where the assembly is, is excepted. (Owens v. The State, 3 Texas Ct. App., 404; Brooks v. The State, 15 Texas Ct. App., 88.) Such, we believe, is the meaning and intent of the law, though we confess that to our minds the provisions of article 321 of the Penal Code are somewhat obscure. We can not believe that it was the purpose and intent of the Legislature to permit school teachers to carry prohibited weapons upon their persons in their school rooms among their pupils, or on the occasion of public assemblies in such school rooms; The law does not in terms accord to them such a privilege, and, without a clearly expressed exception in such case, this court will not sanction •a defense, the effect of which would be to authorize every school teacher in the State to carry prohibited weapons upon his person in our school rooms. Such an effect could not be -other than pernicious, and should not be tolerated.

As to the second defense, we do not think it was available in a prosecution upon the second count, but, even if it was, we do not think that it was sustained by the evidence, it not being shown that any such danger existed as the statute contemplates, or that the defendant had reasonable grounds for fearing an unlawful attack upon his person.

Believing that there is no error in the conviction, the judgment is affirmed.

Affirmed.