This case comes before us on motion for rehearing. Appellant refers us to Art. 387 [344] Rev, Stats., which authorizes the city council to appoint a City Attorney of incorporated cities, and then contends that, inasmuch as it is admitted, in the record, that he was City Attorney of Cleburne, this is clearly proof that he was a civil officer. Concede that this is sufficient to show that he was a civil officer, still there is no evidence before us showing the nature and character of his duties. These duties are to be defined by an act of special legislation — that is, by an ordinance — and we cannot know what they were unless such ordinances are before us. His duties as City Attorney may have been of one character or another. He may have been merely the adviser and attorney for the city in its legislative capacity — that is, for the mayor and board of aldermen — or he may have been authorized to represent the city in the prosecution of persons for violating the municipal ordinances of the city, before the mayor's court or before the recorder. (We are not advised whether the city of Cleburne has a recorder or not). It is true, the record informs us that the mayor's court was then in session; but it does not show what business was then being transacted. It may have been engaged in some matter in which the duties of the City Attorney were not required. It was the duty of the State, in the first instance, to prove the fact that the appellant was found carrying a pistol on and about his person. After the State had so made out its case, if the appellant relied upon the fact that he was a civil officer, and then engaged in the discharge of his duties, it was his business to make out this defense by proof. The onus was upon him; and, if he failed to make this proof, he cannot complain if this court refuses to indulge the presumption that he did establish this defense. We are governed by the the record alone in this matter, and the defense was not made out by testimony. The motion for rehearing is overruled.
Motion Overruled. *Page 615