Bell v. State , 100 Ala. 78 ( 1893 )

McCLELLAN, J.

Appellant was convicted of the offense of carrying' a pistol concealed about his person. The fact of so carrying the weapon within the time and venue covered by the indictment was admitted. The defense was that he had good reason to apprehend an attack. It was in the evidence that he had had a difficulty some little time before with one Chambless, who lived in a village about five miles from Paint Bock, a village - in Avhich the defendant lived and Avhere the pistol was carried by him, and that said Chambless was frequently in Paint Bock. There was also evidence tending to show that Chambless was a determined, dangerous man and that he had declared after the difficulty referred to that if Bell, the defendant, “ever crossed his path again he would kill him.” We think it en: tirely clear on this state of case, and especially in view of the evidence offered as to the dangerous character of Chambless, that it Avas competent for the State to prove that Chambless was a justice of the peace. The inquiry was as to the fact of defendant’s apprehension of an attack and the reasonableness of that apprehension, whether if it was entertained the defendant had “good reason” to be apprehensive. A justice of the peace is a sworn peace officer; he is under a special duty to preserve the public peace, and upon him in a greater degree than upon the private citizen rests an obligation to personally abstain from violence. The fact, therefore, that the person from whom an attack Avas apprehended was a justice of the peace was proper to be considered by the jury in determining whether there was good reason for the defendant to expect- violence from him; it was a circumstance having some tendency to weaken the force of the alleged threat as furnishing the defendant good reason to apprehend an attack; and the court properly allowed it to go the jury.

There Avas no error in excluding testimony to the effect, that the defendant was acting night watchman at a lumber yard in Paint Bock, that as such watchman he was liable to be attacked, and that there had been rocks thrown at the night watchman (not defendant but the regular watchman) two or three times during the same winter.” At the time defendant is shown to have had the pistol concealed about his person he AA'as not discharging his duties as such watchman, nor Avas he at said lumber yard, nor, for aught that appears, had he been there at all that day; but, to the contrary, in compliance with the request of a letter he had received from the manager of the luriiber company, the defendant had gone from his residence by way of the postoffice to the railway depot to meet said manager and light him to his hotel, and while in the depot awaiting the arrival of the train he had the pistol concealed about his person. Whether he Avou-ld have had “good reason to apprehend an attack” had he at that time been engaged in his duties as watchman it is immaterial to inquire. His right to then and there carry a pistol, if he would have any such right, which we do not at all concede, could afford no justification or palliation for carrying the weapon at a different place when and where the dangers and liability to attack incident to a discharge of the duties of night watchman at the lumber yard did not at all exist. Chatteaux v. State, 52 Ala., 388.

We find no error in the record, and the judgment of the Circuit Court is

Affirmed.