Harvey v. State , 102 Miss. 544 ( 1912 )

Smith, J.,

delivered the opinion of the court.

Appellant was convicted in the court below for carrying a concealed weapon. The evidence for the state is that he had been granted permission by the sheriff of Simpson county to visit a prisoner confined in the jail at Mendenhall. While at the jail, before giving him access to the prisoner, the sheriff, following his usual custom, searched’ the defendant, and found on him a pistol concealed. Appellant’s defense was that his life haff been threatened by a man named Sullivan, and he apprehended- from him a serious attack. He lived twenty or thirty miles from Mendenhall, in the neighborhood in. which Sullivan, the man who had threatened his life,, also lived, and in coming to Mendenhall he had to pass', in about a mile of Sullivan’s house, and he stated that he had seen Sullivan in Mendenhall on a former occasion.

The principal error complained of is the granting by the court, at the request of the state, of the following instruction: “The court charges the jury for the state that, even though you may believe from the evidence that the defendant had been threatened and apprehended a serious attack by reason of such threats, yet if you further believe from the evidence beyond a reasonable doubt that the defendant unlawfully carried a deadly weapon at any place concealed at a time and place where he had no just cause or reason to apprehend any attack from the person who had made such threats, then you should find him guilty.” The giving of this instruction under the. facts of this case was fatal error.

The district attorney in cross-examining defendant, questioned him as to the reasonableness of his anticipating an attack while at the county seat, in the presence of the sheriff, and in the county jail. This instruction was evidently designed to advise the jury that, so situated, the appellant had no reasonable ground to anticipate an attack, and consequently that, if he then carried his pistol concealed, he was violating the law. It is not necessary, in order that one who has been threatened with an attack may be justified in carrying a concealed weapon, that he shall anticipate the attack at a particular time or in a particular place. Sudduth v. State, 70 Miss. 250, 11 South. 680. Nor is it necessary for one who has been threatened and in good faith anticipates an attack to disarm himself whenever he comes into the presence of a police officer, or whenever he is temporarily so situated that for the time being he is in no immediate danger of an attack.

Reversed and remanded.