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: 459
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1875.] THE STATE v. DUKE. 459
Opinion of the Court.
people of the State have, are not under constitutional protection.
But, beyond question, the dragoon or holster pistol is
part of the arms of a soldier in that branch of the service.
(Coldwell v. The State, 3 Heiskell, 166, and English v. The
State, 35 Texas, 476.) Regarding, then, some kinds of pistols
as within the meaning of the word, we are of the opinion that
the Act in question is nothing more than a legitimate and
highly proper regulation of their use. We are not called on
to lay down general rules, prescribing how far legislative regulation
may be extended, without trespassing on the constitutional
rights of the citizen. The question for our decision is
the constitutionality of the Act under which this indictment
was proved. It undertakes to regulate the place where, and
the circumstances under which, a pistol may be carried; and in
doing so, it appears to have respected the right to carry a pistol
openly when needed for self-defense or in the public service,
and the right to have one at the home or place of business.
We hold that the statute under consideration is valid, and that
to carry a pistol under circumstances where it is forbidden by
the statute, is a violation of the criminal law of the State.
But the indictment in this case fails to charge a violation of
The rule regulating indictments for violation of statutes,
which is believed to be of universal acceptance, may be. stated
to be, "when an offense is created by statute, and there is an
"exception in the enacting clause, the indictment must nega"tive
the exception." (L Bishop's Cr. Pr., Sec. 382, note 3,
Sec. 376; 1 Wharton's Am. Cr. Law, Sec. 379 and ref.;
(Vornsner v. Omrod, 6 Barn. & Cres., 430; Coin. v. Hart, 11
Gushing, 130; United States v. Cook, 17 Wallace, 173; Hewitt
v. The State, 25 Texas, 722.)
The reason of this rule is that such exceptions constitute a
part of the description of the offense, and unless they aie
negatived no offense is stated. The indictment must ;tate
such facts as constitute a crime. (Bish. on Stat. Crime. SGctions
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Texas. Supreme Court. 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., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/467/: accessed May 29, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .