Ratigan v. State

• Decision Date: 05 May 1894
• Citation: 26 S.W. 407
• Parties: RATIGAN v. STATE.
• Court: Texas Court of Criminal Appeals

26 S.W. 407

RATIGAN v. STATE.

Court of Criminal Appeals of Texas.

May 5, 1894.

Appeal from Colorado county court; Charles Riley, Judge.

T. Ratigan was convicted of crime, and appeals. Reversed.

Kennon & Adkins, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of unlawfully carrying a pistol, and fined in the sum of $25.

There is no question that the appellant had on a pistol at the time alleged. In fact, the evidence shows he had two on his person when disarmed. When first found in possession of a pistol, appellant claimed to be a deputy sheriff, and as such authorized to carry it; but it was ascertained by telegram that, while appellant had been a deputy sheriff of Fayette county, his commission had expired some two or three months previously. Then appellant claimed to be a traveler going through the county selling horses. At the time he was disarmed, appellant was in a saloon, drinking, cursing, threatening, and boisterous. He had freely visited saloons most of the day. The sheriff of the county was sent for, and, when he started into the saloon where appellant was, he was strongly dissuaded from entering by those outside, who feared trouble. The doctrine is well settled that a traveler cannot claim the benefit of his exemption under the pistol law, where he stops over in his journey at any place, and engages in business or pleasure, especially where it consists in visiting saloons and disturbing the public peace. Stilly's Case, 27 Tex. App. 445, 11 S. W. 458; Impson's Case (Tex. App.) 19 S. W. 677; George's Case (Tex. Cr. App.) 22 S. W. 43.

The county judge, in his general charge, correctly instructed the jury so far as related to appellant's defense as a traveler. He should have refused all charges as to his being a deputy sheriff, and all special charges that were requested. There was no proof before the jury that appellant, at the time he was charged with unlawfully carrying a pistol, was a deputy sheriff, nor that he had any reason for believing he was such. He was bound to know that his commission had expired. He knew that he had not been reappointed. The evidence conclusively shows these facts, and that issue was eliminated. But the court, at the instance of the county attorney, charged the jury that if defendant left the livery stable with his pistol, and went to the restaurant to get his supper, and on his way stopped and entered Trojan's saloon, and there remained for a while, drinking and purchasing drinks, and treating others, or that he entered Smolensky's saloon for a like purpose, he would not, at such times and places, be a person traveling, within the meaning of the statute, and would be guilty; or if defendant carried a pistol on his person at or near Juenger's saloon, in the city of Columbus, in Colorado county, Tex., then the state has by such proof made out a prima facie case of guilt against defendant, and it devolves upon him to excuse or justify the act. Appellant excepts to these and other similar charges asked by the county attorney, and given by the court, because they are charges on the weight of evidence, and because the jury are instructed to convict if certain specified facts are true, when other facts excusing the acts are not referred to. The objection is well taken. The charges are on the weight of evidence. The court cannot charge, as matter of law, that a person found at or near Juenger's saloon with a pistol is guilty of unlawfully carrying a pistol. Neither should the court have gathered certain facts in his charge, and instructed the jury that such facts constituted, in law, an offense. The court should content itself with instructing the jury, if necessary, what constitutes a traveler, and then leave it to the jury to say if, under all the facts of the case, the defendant is a traveler.

But appellant insists that the act of January 30, 1889, under which he was convicted, is unconstitutional and void, in that it purports to amend article 318 of the Penal Code, which was repealed by the act of February 24, 1887, and in undertaking to amend a repealed law it could have no vitality or force in itself. Therefore the act of 1887 is the only...