Objections to the charge of the court are presented by the defendant in his motion for a new trial and in an assignment of. errors, but are not insisted upon in the brief and argument of his counsel. We find no fundamental error in the charge; in fact, no error whatever of which the defendant could be heard to complain.
It instructs the jury, in substance, that a penitentiary guard is excepted from the operation of article 318 of the Penal Code, while in the lawful discharge of his duty as such guard, or while on the premises occupied by the penitentiary authorities, or while going to or returning from a place for the necessary purpose of obtaining ammunition for his pistol; but that he would not be exempt from the law if he carried a pistol under different circumstances or for different purposes. These instructions, we think, are as favorable to the defendant as the law would warrant. A penitentiary guard is not specifically excepted from the operation of said article 318, but we believe he comes within the meaning of “civil officer,” as used in article 319 of the Penal Code, and should be held exempt when “engaged in the discharge of his official duty,” as such guard. (Carmichael v. The State, 11 Texas Ct. App., 27.) But it is only when thus engaged that he can be excepted from the operation of the law because of his office.
In this case, the evidence shows that, at the time the defendant was seen with the pistol, he was at a place distant four miles from his place of duty; was not engaged in the discharge of his duty as a guard, but was drunk and threatening to kill himself or some one else before daylight, it being in the night time that he was seen with the pistol. These being the facts of the case, we think the jury were authorized in concluding that the defendant was not in the discharge of his duty as a guard at the time, and was not carrying the pistol for the merely in*101nocent purpose of obtaining ammunition for it, but that he was carrying it with evil intent. The purpose and intent with which he had and carried the pistol was a question of fact for the jury to determine, and it was fairly submitted for their determination by the charge of the court, and their finding is, we think, well supported by the evidence.
Opinion delivered October 10, 1888.The judgment is affirmed.
Affirmed.