McLeod v. State , 140 Miss. 897 ( 1925 )

Ethridge, J.,

delivered the opinion of the court.

The appellant was indicted, tried, and convicted of carrying concealed weapons, and appeals from such conviction.

The facts are that McLeod and two others were traveling from Mt. Olive, in Covington county, Miss., to Chunehula, in the state of Alabama, for the purpose of moving a family from Chunchula, Ala., to Mt. Olive, Miss., to work in a sawmill and on a farm near Mt. Olive. McLeod and the others, in making this trip in a truck, went by way of Ellisville, Miss., and on to Richton, in Perry county, where they were arrested upon a charge of being partially intoxicated. When arrested, they were searched, and a pistol was found concealed on the person of McLeod. The officer at Richton had reeived a telephone message from some other point, telling them that three men traveling in a truck were going that way and were drunk. McLeod and his companions drove up to a store in Richton to get some gasoline for the truck in which they were traveling, and also to buy cigarettes, and the officer appeared and arrested them. The officer testified that he asked McLeod and the others where they were from, and they told him. lie asked where they were going, and they told him; that they were strangers in Richton, traveling through that town, giving the purpose of their mission. The officer preferred a charge of drunkenness against them, which he later withdrew, and theu preferred a charge of carrying concealed weapons. The defendant testified that he was not drinking and was not committing any crime at the time of the arrest, and defended the charge here preferred against him on the ground that he was traveling and was not a tramp,-or was setting out on a journey and was not a tramp. Section 1105 (b), Code of 1906 (Hemingway’s Code, section 831 [b]). The defendant’s testimony that he was traveling through a country in which he was not acquainted is not contradicted by any evidence in the case, but, on the contrary, is supported by the statement made to the officer at the time of the arrest as a reason for having the weapon concealed upon his person, and also hy the testimony of the officer that defendant and his companions were strangers in that community.

The defendant requested a peremptory instruction, which was refused, which refusal is assigned for error. We think the instruction should have been given. The state contends that the'jury were not obliged to accept the defendant’s explanation as true, that the finding of a pistol on the person of the defendant by the officer made out the case, subject to the right of the defendant to have the jury accept his statements, and that the jury are not obliged to accept such statements.

The statute confers a right and a defense, which the jury has no right to disregard, where the defendant’s testimony is uncontradicted,. and where on its face it is not improbable. The jury has no right to disregard arbitrarily the evidence in the case. The evidence is not improbable on its face, and is not unreasonable in any respect, and is absolutely uncontradicted.

The judgment will therefore be reversed, and the defendant discharged.

Reversed.