— Appellant was convicted of the offense of unlawfully carrying a pistol into a public dance hall, and his punishment was assessed at a fine of $100.00.
The testimony offered by the State, briefly stated, shows *205that on the 4th day of April, 1936, Albert Moore gave a dance at his home in the town of Hamlin, Tdxas. A few days prior to the night of the dance Moore went to see the night watchman who was a deputy city marshal and requested him to come out or send someone to the dance to preserve the peace and maintain order and proper decorum. The night watchman informed Moore that he could not go as his duties required his presence in town at night, but that he would see appellant and if appellant would agree to go, he would send him out. The night watchman saw appellant who agreed and did go to the dance for the purposes for which his presence was desired. Sometime during the night while the dance was in progress he struck Clinton Gillis on the head with a pistol. The testimony offered by the appellant shows that on the 19th day of December, 1934, the city council of the town of .Hamlin by an order duly made and spread upon the minutes appointed him a special officer and agreed to pay him the sum of two dollars per day; that on the 14th day of January he informed the mayor of the town that he could not any longer serve as a regular city officer; that the mayor told him that he would pay him for the time he had served, but for him to stand ready to serve on special occasions when requested to do so by any officer; that a short time prior to the occasion in question he served as a special officer at a protracted meeting of the Methodist Church where tires and other parts of automobiles had been taken; that on the afternoon of April 4th the deputy marshal and night watchman requested him to go to Moore’s dance to preserve the peace and if anyone disturbed the peace, to arrest them and bring them to the city hall. He further testified: “I thought I was a peace officer and was trying to preserve the peace as best I could.”
Appellant’s main complaint is that the court erred in declining to give his requested special instruction to the effect that if he (appellant) believed that he was acting with proper authority under the law and believed that he had a right to carry a pistol at the time and place charged, then he was entitled to an acquittal. The court not only declined to give this requested instruction, but failed and refused to incorporate one of like import in his main charge. We are of the opinion that under the testimony of this case appellant was entitled to such an instruction.
In the case of Barnett v. State, 89 Texas Crim. Rep., 45, 229 S. W., 519, this court said:
“In the instant case we believe the court was in error in not *206permitting appellant to prove the matters offered by him in evidence to show what he believed to be his authority for carrying the pistol. If he had been appointed a deputy marshal by Mr. Brewer, or reasonably believed that he had been appointed, and had been exercising authority under that appointment, he would not be guilty of violating the law in carrying a pistol, and we believe the evidence ought to have been admitted, and this issue submitted to the jury.”
Many other cases might be cited in support of appellant’s contention.
In view of the disposition we are making of this case we deem it unnecessary to discuss any of the other questions raised for the reason that the same may not arise again upon another trial.
For the error herein discussed, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.