(dissenting).
Appellant’s motion for rehearing is overruled by my brothren without written opinion.
The information upon which this appellant stands convicted charged that when, by negligence and carelessness, he shot and killed the deceased, the appellant was “then and there in the performance of a lawful act,” which lawful act was the handling of a pistol.
When my brethren affirm this conviction under that allegation, they hold that the acts and the conduct of the appellant in the handling of the pistol, as reflected by the facts, were lawful.
*424To me, such holding is wholly and utterly without foundation and one which the facts simply do not justify. To the contrary, in the handling of the pistol appellant was guilty of acts made unlawful by at least two statutes of this state, i.e.: Arts. 483 and 474, Vernon’s P.C.
Now what are the facts? About 10 o’clock on Sunday morning three policemen of the city of Houston, each dressed in civilian clothes rather than their official uniforms, went to a cafe-beer tavern, woke up the proprietor — who occupied quarters connected with the tavern — and had him open the place and admit them. The policemen who went into the place were Knighton, Bullock (the appellant), and Posey (the deceased). Coleman, the proprietor, was acquainted with Knighton and Posey, and knew they were policemen. He did not know the appellant but was then told he was a sergeant of police.
During the time appellant went off duty shortly after 6 o’clock that Sunday morning until he arrived at the beer tavern he had drunk vodka. He took with him into the tavern a bottle of whisky “less than a third full.” After admittance to the tavern he “got a cup with some ice in it and Seven Up” and mixed a drink. Beer was also ordered.
Knighton remarked that the can of beer served him “didn’t have a big enough hole in it,” whereupon he held up the can and appellant shot at it with his .45 caliber pistol. The shot barely tipped the can. After setting the can on the table where he and the other officers were seated, Knighton then, at the suggestion of Posey, the deceased, that they should not be “shooting in this place because it might get [them] into trouble,” picked up the pistol and placed it on top of a wall clock. But shortly thereafter, appellant took the pistol down and put it back on the table. He told Knighton to hold up the can again, and he shot at it once more, this time putting a hole in the can. After the completion of this target practice appellant again laid the pistol on the table.
Later, as appellant arose and picked up his pistol, intending, he said, to put it into his pocket, the pistol fired and the deceased was killed.
There is no contention, here, that the firing of the pistol was wilful, deliberate, or done with the intent to kill Posey. It was the state’s position that the actual firing of the pistol was the result of negligence or carelessness.
*425The information did not allege what acts were negligent or careless in causing the pistol to fire. There is nothing here to indicate what acts of the appellant were relied upon to constitute negligence or carelessness. About all I can ascertain from the facts is that the pistol fired as appellant picked it up.
There being no evidence that the pistol was intentionally or purposely fired the third time, it appears to be the position of the state that since there was no such evidence it must have been done negligently or carelessly, any inference that it was fired accidentally being thereby wholly ignored. The firing of the pistol could have been accidental.
But be that as it may, what do the laws of this state say about one carrying a pistol on or about the person? Art. 488, Vernon’s P.C., says that it is unlawful for any person at any time or at any place to “carry on or about his person * * * any pistol * *
When appellant had the pistol in his possession, he was violating that statute and his act in handling and shooting the pistol was unlawful and in violation of law and of Art. 483, Vernon’s P.C.
The legislature deemed it advisable to exempt certain persons and certain classes from the operation of that statute, and passed Art. 484; Vernon’s P.C. That statute provides that the provisions of Art. 483, Vernon’s P.C., shall not apply to “any peace officer when “in the actual discharge of his official duty.”
The legislature did not say that Art. 483, Vernon’s P.C., did not apply to all peace officers at all times and places; it expressly limited the exemption to the carrying’ of a pistol by a peace officer when “in the actual discharge of his official duty.”
The burden is upon the person claiming the exemption to show that he is within the terms thereof.
Indeed, in Trimble v. State, 132 Texas Cr. Rep. 236, 104 S.W. 2d 31, this court said that when the conditions which authorize the carrying of a pistol cease to exist the right to carry the pistol ceases. In that connection, this court further said:
“No peace officer may arm himself and thereafter aid in the violation of public laws or private rights, and vantage him*426self by seeking to invoke a right to carry arms pertinent only when such officer is about his duty and within the law.”
In the face of that holding and the statutes mentioned, to me it is unthinkable to say that this appellant, who on Sunday morning went to a beer tavern, drank beer, and proceeded to engage in target practice with his pistol, was at that time and in so doing in the “discharge of this official duty” as a policeman and was therefore lawfully carrying the pistol on or about his person. The fact that appellant had changed from his policeman’s uniform to civilian clothes is strong evidence, within itself, that he was not in the “discharge of his official duty,” as a policeman. He, himself, made no claim that he was on duty at the time; he knew that he was not.
Yet my brethren, by affirming this case, say that appellant was lawfully carrying the pistol on or about his person when it was negligently and carelessly fired.
But the carrying of the pistol was not the only unlawful act that appellant was committing:
It is a violation of the law for one to go into or near a public place and rudely display a pistol in a manner calculated to disturb the inhabitants thereof. Art. 474, Vernon’s P.C.
In Russell v. State, 38 Texas Cr. Rep. 590, 44 S.W. 159, this could held that a peace officer violates that statute when he rudely displays and fires his pistol.
When appellant conducted the target practice by shooting the pistol at the beer can, he was rudely displaying the pistol, without reference to whether he was or was not at the time lawfully carrying the pistol on or about his person.
Nor am I going to agree that a policeman has the lawful right while in the performance of his official duty to rudely display his pistol in violation of Art. 474, Vernon’s P.C. Peace officers have no more right to rudely display a pistol, while carrying it, in violation of law than does the humblest citizen of this state.
If this appellant was to be prosecuted for negligent homicide, under the facts here presented the state should have proceeded under that provision of the law which makes one guilty of negligent homicide who, by negligence or carelessness, kills another *427while in the performance of an unlawful act known as negligent homicide of the second degree.
The conclusion reached by my brethren in affirming this conviction renders the law of negligent homicide in Texas in such a confused and uncertain state as to nullify all the law on that subject.
I respectfully dissent.