## Facts

- George Duke was indicted in the District Court of Caldwell County for unlawfully carrying a pistol (“a six-shooter”) under Texas’s 1871 “Act to regulate the keeping and bearing of deadly weapons.”
- The statute generally prohibited carrying specified weapons, but exempted conduct and persons in multiple “unless” clauses and provisos (including possession on one’s premises or place of business, certain officers while on duty, and travelers carrying arms with baggage).
- Duke moved to set aside the indictment on the ground that it was legally insufficient.
- The trial court granted the motion and set aside the indictment.
- The State appealed to the Texas Supreme Court.

## Issues

1. Whether an indictment for unlawfully carrying a pistol under the 1871 deadly-weapons statute must negate the statute’s exceptions and provisos to state an offense.
2. Whether the legislature may constitutionally permit an indictment to omit negative averments when the exceptions and provisos are essential to the offense’s definition.

## Decision

- The Texas Supreme Court affirmed the order setting aside the indictment.
- The Court held the indictment was insufficient because it alleged only that Duke “unlawfully” carried a pistol and did not negate statutory circumstances and classes of persons excepted by the Act.
- The Court held that the statute’s provisos were essential parts of the offense’s description; therefore, a procedural rule allowing their omission from the indictment would violate the constitutional requirement that a person answer a criminal charge only upon a valid indictment or information fully charging an offense.

## Legal Principles

- When a criminal statute defines an offense and, in the same provision, includes exceptions or provisos that limit when the conduct is criminal, those exceptions are part of the offense’s description.
- An indictment under such a statute must allege facts showing the charged conduct falls within the prohibition and must negate the statutory exceptions that would otherwise render the conduct lawful.
- Merely alleging that conduct was done “unlawfully” is a legal conclusion and does not cure failure to plead essential elements.
- The constitutional guarantee that a defendant will answer only upon indictment or information requires that the charging instrument itself fully and distinctly state the offense as defined, including essential limiting provisos.

## Conclusion

The court held that an indictment charging only that the defendant “unlawfully” carried a pistol did not state an offense under the 1871 Texas deadly-weapons statute because it failed to negate the statute’s exceptions, and the State could not rely on legislative pleading simplification to omit provisos that were essential to the crime’s definition.


State v. Duke, 42 Tex. 455 (Tex. 1875)