Reynolds v. State

MORROW, Presiding Judge

(concurring). — In the present case, the minutes of the City Council were introduced in evidence showing that on December 19, 1934, the appellant was appointed as extra policeman with full police power to serve during the holidays at a salary of $2.00 per day; that according to the testimony of the City Secretary, the City Council had never passed an order discharging the appellant as deputy "marshal of the city of Hamlin. The appellant testified that on The 14th day of January, 1935, after his appointment as extra ^policeman, he informed the City Mayor that he would be unable To work regularly for a longer period of time; that the Mayor said:

“We will pay you for the time you have served, and you can stand ready to serve any of the officers at any time they call on you.”

In accord with the above statement, the appellant had served as a special police officer on several occasions. On the afternoon of the 4th of April, 1936, the deputy marshal and night policeman of the city of Hamlin, requested the appellant to go to Albert ..Moore’s place that night, where there was to be a dance, and preserve the peace and good order and keep down any drunken rows. The deputy marshal testified that the appellant had acted *207as special officer for him on several occasions when he needed help and that it was his understanding that the appelant was authorized to serve any of the officers of the town when called upon to do so.

In Tex. Jur., Vol. 44, p. 454, sec. 15, it is said:

“A person claiming that he was a peace officer at the time cannot successfully invoke the statutory exemption unless his appointment was legal and that he had qualified in the mode prescribed by law. There are, however, eases, in which it is held that a defendant who• carried a pistol under the honest though erroneous belief that he was a legally constituted officer was entitled to an acquittal, the pistol having been carried in such circumstances as would have justified him if he had in fact been an officer.”

In support of the text the following cases are cited: Barnett v. State, 89 Texas Crim. Rep., 45; Black v. State, 48 Texas Crim. Rep., 63; Carroll v. State, 57 S. W., 94; Lyle v. State, 21 Texas Crim. App., 153; Blair v. State, 26 Texas Crim. App., 387.

In the Blair case, supra, it was held that although the appellant was not, in fact, a deputy sheriff, if he honestly believed that he was and carried the pistol because he so believed, he would not be guilty.

Under the facts in the present case, it is our opinion that the court should have submitted to the jury the special charge requested by the appellant to the effect that if he 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, he should be acquitted.

Because of the refusal of the court to give the charge mentioned, it is thought that reversible error was committed, and for that reason we concur in the reversal of the judgment of conviction.

Hawkins, J., concurs.