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: 460
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460 THE STATE v. DUKE. [Term of
Opinion of the Court.
If any one material fact or circumstance be omitted, the
" indictment will be bad." (1 Arcll. Cr. Pr., 56.) "No indict"ment
is sufficient which alleges an act or omission in itself
"'innocent, unless it proceed to disclose circumstances which
"render such act or omission illegal." (Starkie's Cr. Pi., 171,
as cited, 1 Bish. Cr. Pr., Section 380.)
The Legislature has not attempted to make the carrying of
a pistol of itself an offense. The enacting clause itself excepts
certain officers in actual service, and any one having reasonable
grounds to fear an attack. Tested by the rule above stated,
the indictment is defective. But in truth, not only are these
exceptions descriptive of the offense, but the provisos not perhaps
embraced in the enacting clause, are equally parts of that
description. If the latter could be regarded as properly provisos,
the place they occupy would make it unnecessary to
negative them. But in truth they are all, those introduced by
the word unless, and those by the word provided, in legal effect
qualifications of the enacting clause. It is only by virtue of
them that the act becomes a regulation instead of a prohibition.
They are, in fact, constituent elements of the offense, just as
much as if the statute read: "Whoever, not being a peace
"officer or policeman, and not having reasonable grounds to
" fear an attack, shall; at any place other than his own premises
"' or place of business, carry on or about his person any pistol,
shall be guilty of a misdemeanor," etc. The statute undertakes
to regulate the carrying of pistols. The offense which
it creates consists in the violation of the regulations prescribed.
If the enacting clause and the qualifications were all separated
by a proviso, or were in different sections, connected only by a
reference in the first section to exceptions specified in a subsequent
section, yet inasmuch as the qualifications or regulations
!re essential to the validity of the Act, they should be nega.tived
in the indictment. (See 1 Bish. Cr. Pr., Sec. 380; Mills
t ..ennedy, 1 Bailey, 17; The State v. Alley, 29 Ib., 60; The
E-tate v. Miller, 24 Conn., 522.)
Regarding the form and place which these regulations occupy
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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/m1/468/: accessed October 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .