Street v. State , 67 Ala. 87 ( 1880 )

STONE, J.

— The first charge asked is evidently incomplete, and we will not consider it. It is entirely true that if a pistol is so carried as that persons about the defendant can see it with ordinary observation, then it is not concealed within the meaning of the statute. To constitute the offense denounced by the statute, the pistol must be so carried or worn, as that persons near enough to see it, if not concealed or hidden, cannot see it. Charge No. 2, requested by the defendant and refused by the court, was evidently intended to assert this proposition. The question is, does it express the idea with sufficient clearness, to relieve it from the imputation of involvement or obscurity. — -1 Brick Dig. 344, § 130; Bell v. Troy, 35 Ala. 184; 1 Brick. Dig. 339, §§ 59, 60, 61. To authorize a reversal for a refusal to charge as requested, it is not always enough that the request asserts .a legal proposition, correct in itself. It must be correct, in reference to the evidence in the case. Charges should be based on the tendencies of the testimony. — Martin v. Hill, 42 Ala. 108; Ross v. Pearson, 21 Ala. 473.

Construing the charge requested by the principles stated above, we think its tendency was to confuse and mislead the jury. New men, not members of the legal profession, would readily understand the charge as asked, to express the simple definition of concealment, as given above. It would require reflection and close examination, to detect its scope. In addition to this, to justify the defendant’s acquittal, it was necessary that the pistol should be so worn or carried, as that persons near enough to see it if not hidden, could see it with ordinary observation. It was not enough that it could be seen, when the defendant took off his coat,for,!by some accident, the skirt of the coat was so displaced as to expose it to view. We think the charge, if given, had a tendency to mislead the jury in this respect. — Duvall v. The State, 63 Ala. 12.

Affirmed.