Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 461

1875.] THE STATE V. DUKE. 461
Opinion of the Court.
in this very loosely drawn statute, as not affecting their real
nature, or essential parts of tile description of the offense, we
hold, that it was necessary tllat the indictment should substantially
negative that the pistol was carried by a person, or at a
place, or under circumstances allowed by the statute. The
case of Jenkins v. Tile State (34 Texas, 638), in which a majority
of the court held differently, may be regarded as overruled. In
regard to the form of these averments, it is held that whatever
amounts to a substantial negative is sufficient. (The State v.
Keen, 34 Me., 500; Corn. v. Balard, 12 Gray, 132; Bish. Cr. Pr.,
211, Sec. 384.) For example, the affirmative averment, that a
pistol was carried on the person, would, we think, sufficiently
negative that it was carried with his baggage by
one traveling in the State. (Bish. Cr. Pr., Sec. 384, and ref.)
Though the words "willfully and unlawfully" are clearly
insufficient, it is not necessary to follow the precise language
of the statute. (See 1 Wharton's Cr. Law, Sec. 379
and 402.)
In arriving at the conclusion stated as to the requisites of an
indictment, we lave not overlooked that Article of the Code of
Criminal Procedure which says: "It is not necessary to state,
in an indictment, anything which it is not necessary to
"prove." (Paschal's Digest, Article 2864.) That the defend.
ant was in no danger of an attack, and perhaps that he was not
a peace officer, being averments of facts 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.
But, being essential parts of the description of the offense, a
statute authorizing their omission would be in violation of the
Constitutional right to be exempt from answering "any
"criminal charge but on indictment or information," and of
the guaranty that " No citizen of the State shall be deprived of
"life, liberty, property, privileges, outlawed, exiled, or in any