Appellant was convicted of unlawfully carrying a pistol, and fined in the sum of $25.
There is no question that the appellant had on a pistol at the time alleged. In fact, the evidence shows he had two on his person when disarmed. When first found in possession of a pistol appellant claimed to be a deputy sheriff, and as such authorized to carry it; but it was ascertained by telegram that, while appellant had been a deputy *Page 304 sheriff of Fayette County, his commission had expired some two or three months previously. Then appellant claimed to be a traveller going through the country selling horses. At the time he was disarmed appellant was in a saloon, drinking, cursing, threatening, and boisterous. He had freely visited saloons most of the day. The sheriff of the county was sent for, and when he started into the saloon where appellant was he was strongly dissuaded from entering by those outside, who feared trouble. The doctrine is well settled that a traveller can not claim the benefit of his exemption under the pistol law, where he stops over in his journey at any place and engages in business or pleasure, especially where it consists in visiting saloons and disturbing the public peace. Stilly's case, 27 Texas Crim. App., 445; Impson's case, 19 So. W. Rep., 677; George's case, 22 So. W. Rep., 43.
The county judge in his general charge correctly instructed the jury so far as related to appellant's defense as a traveller. He should have refused all charges as to his being a deputy sheriff, and all special charges that were requested. There was no proof before the jury that appellant, at the time he was charged with unlawfully carrying a pistol, was a deputy sheriff, nor that he had any reason for believing he was such. He was bound to know that his commission had expired. He knew that he had not been reappointed. The evidence conclusively shows these facts, and that issue was eliminated. But the court, at the instance of the county attorney, charged the jury, that if defendant left the livery stable with his pistol, and went to the restaurant to get his supper, and on his way stopped and entered Trojan's saloon, and there remained for awhile, drinking and purchasing drinks, and treating others, or that he entered Smolenski's saloon for a like purpose, he would not, at such times and places, be a person travelling, within the meaning of the statute, and would be guilty; or if defendant carried a pistol on his person at or near Juenger's saloon, in the city of Columbus, in Colorado County, Texas, then the State has by such proof made out a prima facie case of guilt against defendant, and it devolves upon him to excuse or justify the act. Appellant excepts to these and other similar charges asked by the county attorney, and given by the court, because they are charges on the weight of evidence, and because the jury are instructed to convict if certain specified facts are true, when other facts excusing the acts are not referred to. The objection is well taken. The charges are on the weight of evidence. The court can not charge, as matter of law, that a person found at or near Juenger's saloon with a pistol is guilty of unlawfully carrying a pistol. Neither should the court have gathered certain facts in his charge, and instructed the jury that such facts constituted, in law, an offense. 18 Texas Crim. App., 484. The court should content itself with instructing the jury, if necessary, what constitutes *Page 305 a traveller, and then leave it to the jury to say if, under all the facts of the case, the defendant is a traveller.
But appellant insists that the Act of January 30, 1889, under which he was convicted, is unconstitutional and void, in that it purports to amend article 318 of the Penal Code, which was repealed by the Act of February 24, 1887, and in undertaking to amend a repealed law it could have no vitality or force in itself. Therefore the Act of 1887 is the only law in force, and appellant was not convicted under that law. If we examine the captions and first sections of the acts referred to, we find that the caption and section 1 of the Act of 1887 read as follows (see page 7): "An act to amend article 318, chapter 4, title 9, of the Penal Code of the State of Texas. Section 1. Be it enacted by the Legislature of the State of Texas, that article 318 of the Penal Code shall be amended to read as follows." The caption and section 1 of the Act of 1889 read as follows (see page 33): "An act to amend an act entitled 'An act to amend article 318, chapter 4, title 9, of the Penal Code of the State of Texas,' passed by the Twentieth Legislature, and approved February 24, 1887. Section 1. Be it enacted by the Legislature of the State of Texas, that article 318 of the Penal Code shall be and the same is hereby amended so as to hereafter read as follows." It certainly needs no argument to show that the Act of 1889 was intended to, and did, amend article 318 of the Penal Code, as amended by the Act of 1887. The title of the act expressly so declares. But counsel contend that the title is no part of the act itself, but simply an indorsewent made upon the bill for the convenience of those through whose hands it must go in its introduction and passage through the Legislature; that the intention of the Legislature to amend the Act of 1887 should have appeared in the first section of the amending act, to receive judicial recognition. We do not think it must necessarily be so. The early English cases no doubt held the title of an act no part of it. Indeed, Lord Holt declared it to be like the title of a book — merely used to designate it. But such is not the law with us. The title of an act, under our Constitution (article 3, section 35), is made an important part of the act itself. While it is to receive a liberal construction (Nichols' case, 32 Texas Criminal Reports, 391), it must indicate the subject of the law passed thereunder, and becomes the test of the constitutionality of the several provisions of the act itself. The intention of the Legislature clearly appearing in the caption of the act, we are of the opinion that a failure to express the same intention in the first section of the act will not invalidate the law. Indeed, we may go further, and say that had neither caption nor first section made any reference to the Act of 1887, but simply amended the law by reference to the article, chapter, and title of the Penal Code, we would sustain the law upon the ground that the law so referred to was the Penal Code as last amended by the Legislature, for the Penal *Page 306 Code still remains such, however amended it may be. Segar's case, 32 Tex.Crim. Rep..
For erroneous charges given by the court, the judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.