Wilson v. State , 68 Ala. 41 ( 1880 )

STONE, J.

The act for which the defendant in this cause was indicted, was done before the enactment of the statute of February 19th, 1881.—Pamph. Acts, 38. Hence, this case is governed by section 4109 of the Code of 1876.

The question, what constitutes a journey, under our statute, has been several times before this court.—Lockett v. The State, 47 Ala. 42; Eslava v. The State, 49 Ala. 355; Gholson v. The State, 53 Ala. 519; Coker v. The State, 53 Ala. 95. The case of Gholson v. The State, is republished in 25 Amer. Rep. 652, to which is appended a note of many decisions bearing on a kindred question. The English decisions therein referred to, were rendered on a very different statute, having a different object. So of the cases from Massachusetts. The case of Waddell v. The State, 37 Tex. 354, was for carrying a pistol, under a statute somewhat like, yet differing from ours. Going very short distances — ridiculously short, in some of the cases — are held to constitute persons travelers under their statutes. Traveling, and setting out on & journey, are the descriptive words employed in the exception to our statute. These words are used in their popular sense, and it is impossible to lay down any unbending rule, or determinate distance, which will unerringly characterize the act as a journey, or the actor as a traveler. Much must depend on the circumstances of each particular case. In Gholson’s case, this court approved the language of the dissenting opinion in Lockett’s case, that “t he distance of travel was intended to be such as would take him beyond tbe circle of his general acquaintance, and amongst strangers, for whose conduct he was in no wise responsible, either by precept or example, and against whom he was not protected by the consideration we exhibit for those whom we know.” So, in Coker’s case it was shown the defendant had traveled from his own county, across a second, and into a third, among strangers, and it was conceded, rather than decided, that this constituted him a traveler.

We think that leaving the neighborhood of one’s immediate acquaintances and friends, and going among strangers, and, possibly, the purpose and object had in view, are circumstances to be weighed by the jury in determining, whether the defendant was traveling, or setting out on a journey, so as to excuse the carrying of weapons concealed about the person. And while there may be cases so plain that the presiding judge might, as matter of law, instruct the jury that the defendant was or was not traveling, or setting out on a journey, we do not think the present case justified the affirmative charge given by the court. The instruction was, that if the only evidence was that the defendant was setting out by railroad from Mitchell’s Station [in Bullock county] to go to Hickory Bend [in Elmore county] by way of Montgomery [in an intervening county] — that Hickory Bend was only about forty miles from Mitchell’s Station by railroad, and only about twenty miles by dirt-road, that was not setting out on a journey when he left Mitchell’s Station. This was equivalent to asserting that the excuse offered, if fully believed, was not sufficient in law. We all think this charge was erroneous; A majority of the court go further, and hold that under the testimony in this cause, if believed, the defendant was setting out on a journey.

Reversed and remanded.