Smith v. State , 96 Ala. 66 ( 1892 )

THORINOTON, J.

Appellant was indicted and convicted for carrying a pistol concealed about his person in violation of section 8775 of the Code. The only exceptions reserved on the trial are to the general charge given by the court, and the refusal of the court to give the charge asked by appellant.

The facts necessary to a clear understanding of the action of the court in these particulars are as follows: Defendant and one McCullar were passing the former’s boarding place, when he went into the house and shortly afterward returned, Avhere McCullar was awaiting him, bringing a pistol in his hand. After the two had proceeded some distance, McCul-lar walking at the left of the defendant, and the latter carrying the pistol in his hand, they met one McCollum, when defendant “put the pistol under the left side of his coat with his right hand, and held it there a minute or two, and then carried it on in his hand, until, taking it to pieces, he placed all the pieces except the barrel in his pocket.” The defendant testified that he placed the pistol under his coat, as above described, with the intention of frightening McCol-lum “by throwing it up at him,” but it does not appear whether he attempted to execute such intention or not. The bill of exceptions further states that the testimony of this witness (defendant) tended to show that the pistol “could be readily seen all the time by a person in front, or to the right of defendant, but that it could not be seen by a person standing to the left front of defendant, by reason of the fact that the coat was over it.”

The statute in question, while not impinging upon the constitutional right of every citizen-to bear arms in defense of himself and the State, and excepting from its operation one whose life is actually threatened, or, as the case may be, relaxing in his favor the measure of punishment prescribed, is founded on a wise public policy, haying for its object the preservation of human life and the public peace by prohibiting a practice evil in its tendencies, and opposed to the peace and good order of society. A lax administration of such a law would place at a disadvantage those who obey its mandate, in favor of those who' habitually disregard it, and convert into a snare and delusion what was intended as a measure of protection and safety. The interpretation of such a statute should be such as to leave no room for evasions of its letter or spirit, and this court, in'dealing with it, has discountenanced all defenses of that character. The principles it has announced, so far ‘ as- the same are applicable to this case, are as follows: “To constitute concealment it is not necessary tbat tbe weapon may be seen from without, by inspection, or examination, more or less close; it is sufficient if it is bidden from ordinary observation.” — Jones v. State, 51 Ala. 16. “To justify tbe defendant’s acquittal it was-necessary tbat tbe pistol should be so worn or carried as tbat persons near enough to see it if not bidden could see it with ordinary observation. It was not enough tbat it could be seen when tbe defendant took off bis coat, or by some accident tbe skirt of tbe coat was so displaced as to expose it to view.” — Street v. State, 67 Ala. 87. “Tbe true inquiry and test in such cases are, was it so parried as not to be discernible by ordinary observation ? Tbat it is not in fact seen may result from the want of' attention. Tbat is not enough. ' Tbe proper inquiry was, could it have been so seen by ordinary observation as to disclose it was a pistol, held or carried, as tbe testimony convinces tbe jury tbe real facts were? If it could, then tbe statute was not violated.” — Ramsey v. State, 91 Ala. 29.

What is ordinary observation in such cases can not well be defined so as to meet all tbe varying conditions under which weapons may be carried about the person, but it may be said, generally, that tbe meaning is, tbe weapon must be open to the ordinary observation of persons who may come in contact in tbe usual and ordinary associations of life with one who carries a weapon about bis person. If parties approaching a man, carrying a weapon about bis person, or passing him on tbe streets or highways, or thrown with him in ordinary social contact, can see the weapon without inspection or examination for tbat purpose, and from ordinary observation, then such weapon is not concealed about tbe person within.the meaning of tbe statute. Whether or not, however, it is so concealed is a question for tbe jury under all tbe facts and circumstances of. each case.

• Tbe charge given ■ by tbe court lays down a stricter rule than is warranted by the decisions of this court; it assumes tbe guilt of tbe defendant if tbe pistol was so carried about bis person tbat it was concealed from tbe view of those occupying a particular relative position with respect to him, although it may have been open to tbe ordinary observation of those occupying different positions with reference to bis person; and one of said last named positions, viz., in front of tbe person carring tbe weapon, is tbat from which it would most probably be open to ordinary observation, if carried in tbe mode that pistols not intended to be concealed are usually and ordinarily carried about tbe person. Tbe charge requested by defendant conformed to tbe principles herein announced. The Circuit Court erred in- the charge given, and in the refusal of* the charge requested by the defendant, and for these errors its judgment is reversed, and the cause remanded for a new trial.

Reversed and remanded.