State v. Pollock

Ellison, J.

On the twenty-ninth day of April, 1891, at the April term of the Holt circuit court, the defendant was tried by a jury, and convicted on an information, under section 3502 of Revised Statutes, 1889, charging him with the offense of going into a court-room in Holt county, during the sitting of court, having upon and about his person a deadly weapon, to-wit, a revolving pistol.

On the trial, after the state had introduced evidence tending to prove the issues on its part, the defendant in his defense offered to introduce evidence tending to prove that, at the time and place he was charged with carrying the pistol, he was a defendant in a criminal prosecution then on trial, in which he was charged with using the pistol, and that he carried it into the courtroom at that time believing that he would be required to produce it in evidence, and for no 'other purpose. Defendant also offered to introduce evidence tending to prove that at the time and place mentioned in the information he was a deputy constable of Benton township, in Holt county, and that, as such officer he - was authorized to execute process and warrants, and to make arrests anywhere in said county.

These offers were rejected. Instructions placing such hypotheses to the jury were reiused. We must *447 "hold the rulings of the trial court to "be error under the decisions of the St. Louis Court of Appeals in State v. Larkin, 24 Mo. App. 410 , and State v. Roberts, 39 Mo. App. 47 .

It was stated at the argument that the exclusion of ■evidence showing defendant’s official character was on the ground that he was not in the township of which he was constable. This is not a sufficient objection. He was in the county in which his township was located, and as such officer he had powers and duties over the ■entire county. R. S. 1889, sec. 2380. It has been held in Clayton v. State, 21 Tex. App.; s. c., 19 S. W. Rep. 261 , that a deputy sheriff would not be amenable to a similar statute to ours for carrying weapons in another ■ county, even though he be there on private business. Anri in Williams v. State, 42 Tex. 466 , under a statute which declared that, “If any person shall go into any church * * * and shall have or carry about his person any pistol * * * unless an officer of the peace, he shall be guilty of a misdemeanor,” etc.; it was held that the defense was made out by showing that the accused was such officer without showing that he was at the time and place engaged in the discharge of his duties as such officer.

The judgment will be reversed and the cause remanded.

All concur.