Featherston v. State

Appellant was convicted of unlawfully carrying a pistol on and about his person, and his punishment assessed at a fine of $25, and he prosecutes this appeal. The statement of facts in the case shows that, at the time appellant was carrying the pistol, he was City Attorney for the city of Cleburne, in Johnson County, Texas; that, at the time, he was in the mayor's office and court room of said city; that, at said time, he made the mayor's office his office, and had no other office; that the mayor's court was in session, sitting as a court at the time. The contention of the appellant is, first, that he was a civil officer, and, as such, was authorized to carry said pistol. There are no charter provisions of said city of Cleburne, before us, creating the office of City Attorney, and defining his duties; and, assuming that the city was incorporated under the general laws of the State, we have examined the same, and find nothing creating or defining the duties of the said office in said act. In the absence of evidence showing the creation of such office, and defining the duties of the same, we are not prepared to say that the appellant was a civil officer. See, Alford v. State, 8 Tex.Crim. App., 545; U.S. v. Hatch, 1 Pin., 182; 19 Amer. and Eng. Ency. of Law, p. 552, title "B." Besides, if appellant was a civil officer, the proof should have gone further, and have shown that, at the time, he was engaged in the discharge of official duty, and the record fails to show this. It is also contended, by appellant, that he was at his place of business, and had a right to carry said pistol. This involves the right of appellant to make the mayor's office his private business office, and authorize him, as a private person, to carry said pistol at the mayor's office. As a peace officer, he might do this, or as a civil officer, but we do not believe that the statute ever contemplated that a private person could make a public, office his private business office, and so be authorized to carry a pistol on and about his person in such office. While the indictment in this case might have been framed under Art. 320, Penal Code, it was not. The conviction was had under Article 318. It therefore affords no reason why the conviction should be set aside. The judgment is affirmed.

Affirmed.

DAVIDSON, Judge, absent.

ON REHEARING.