Eslava v. State , 49 Ala. 355 ( 1873 )

BRICKELL, J.

— In the charge given, and in the charge refused, the City Court committed no error prejudicial to the appellant. If it be conceded that the appellant had the right to carry the pistol concealed, because of the danger incident to his necessary travel to and from his residence and his place of business in the city, the right could only be coextensive with the necessity. If the necessity existed only while he was travelling, then, if after he reached the city and had a reasonable opportunity of divesting himself of the weapon, or of changing the manner of carrying it so as not to offend the statute, he continued to bear it concealed about his person, he is guilty as charged. This is the view on which the City Court proceeded, and presented it, in the charge given, very favorably to the appellant. The charge requested was in conflict with this view, and was properly refused.

2. We must not be understood as recognizing the proposition that one who resides in the country, contiguous to a town or city, and has a place of business in the town or city, can, while going to and from his residence and to his place of business, be considered as “ travelling, or setting out on a journey,” within the meaning of the statute. There may or may not be, as there may or may not be in passing and repassing the streets of a town or city, dangers attendant on such passage, inducing “ good reason to apprehend an attack,” and relieving the act of carrying a weapon concealed of all criminality. But the “ travelling or setting out on a journey,” which under the statute excuses the act, must be a travel to a distance from home, and not within the ordinary line of the person’s duties, habits, or pleasure.

The judgment of the City Court is affirmed, with costs.