Dean v. State , 98 Ala. 71 ( 1893 )

McCLELLAN, J.

The offense of carrying a weapon concealed about tbe person being continuous in its nature, tbe trial court did not err in allowing tbe State to prove by the witness Simon Nelson that a few minutes bofore tbe time at which Adam Ellis saw tbe defendant draw a pistol from bis liip pocket which bad theretofore been concealed, and at a different place, be Nelson, had seen a pistol on defendant’s person when the latter’s coat bad been casually brushed aside.— Etress v. The State, 88 Ala. 191; Smith v. State, 79 Ala. 257; Ladd v. State, 92 Ala. 58.

The further testimony of this Avitness, Simon Nelson, to tbe effect that tbe defendant then said, “He was going to raise bell on tbe bill that night” ought, in our opinion, to have been excluded. We are unable to say that a man’s purpose to raise bell “on tbe bill” or elsewhere, affords any ground for a legitimate inference on tbe part of tbe jury that, even shortly before tbe time for tbe beginning of the proposed disturbance, be bad a pistol concealed about bis person. A contrary conclusion would have to be rested on the presumption that all men when intending to raise a disturbance, or to “raise bell,” Avliatever that may mean, arm themselves Avith deadly Aveapons Avhich they carry concealed. We do not think such a presumption can be indulged. Tbe evidence Avas irrelevant, and should have been excluded. For tbe error committed by tbe trial court in refusing to exclude it, tbe judgment must be reversed.

Tbe cause is remanded.