The defendant was tried on an information for going into a justice’s court, in DeWitt County, having on his person a pistol, said court then and there being a public assembly. The information also charged that the defendant was not a peace officer at the time.
We think the court did not err in overruling the defendant’s application for a continuance. It is not sufficient, in an application for continuance, to state that affiant caused an attachment for the absent witness to issue; he should state what was done with the attachment after it was issued. It is not shown that the attachment was placed in the post-office. For aught that appears, the defendant may have procured the issuance of the attachment and then kept it in *446his own possession. Murray v. The State, 1 Texas Ct. App. 417, and authorities therein cited. The application is also defective in stating general conclusions of mixed law and fact, without setting out the facts intended to be proved by the witness.
The information was found under article 6514, Paschal’s Digest. It negatives the only exception named in said article, to wit, that the defendant was a peace officer at the time. This is all that is required. See Owens v. The State, decided during the present term of the court, ante, p. 404.
The exceptions to the information were properly overruled. A statement in it of the facts necessary to constitute the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended to' be charged, is all that is required. That was made in the information.
The evidence shows that the pistol was found on defendant’s person in a justice’s court which was in session and engaged in the trial of a cause. We believe the proof clearly shows that the justice’s court was then “ a public assembly ” within the meaning of the law.
That defendant was not a peace officer at the time, being an averment of fact peculiarly within defendant’s knowledge so that he could have no difficulty in showing the truth, no proof of such averments on the part of the state would be required. In the absence of proof, the presumption would be against the existence of facts so exceptional in their nature. The State v. Duke, 42 Texas, 455; The Commonwealth v. Hart, 11 Cush. 130.
This disposes of all the errors assigned. •
The judgment of the County Court is affirmed.
Affirmed.