Thomas v. City of Tupelo , 133 Miss. 166 ( 1923 )

Holden, J.,

delivered the opinion of the court.

Romie Thomas appeals from a conviction on a charge of carrying a, concealed pistol, and sentence to pay a fine of one hundred dollars and serve thirty days in jail, under the ordinances of the city of Tupelo.

The case in short is this: Thomas had ordered and received a pistol through the mail. After he left the post office, going home, with a box in his hand containing the pistol, he met a policeman, who asked him what he had in the box, and appellant stated it was a pistol. The box containing the pistol, upon the request of the policeman, was handed to the officer. Appellant was arrested, and charged with carrying a concealed weapon.

Upon the trial in the circuit court the appellant defended against the charge on the ground that his life was threatened, and he had good reason to apprehend a serious attack from an emeny, under section 831, Hemingway’s Code. He introduced testimony supporting this defense, and this issue was submitted to the jury, which returned a verdict of guilty as charged.

The appellant presents several points for reversal, but we shall notice only one, which will reverse the judgment of the lower court, and the other questions may not arise on a new trial. The court instructed the jury, for the city of Tupelo (the prosecution) :

“That if they believe from the evidence beyond a reasonable doubt that the defendant carried concealed the pistol at- the time and place charged in the affidavit, then they will find the defendant guilty as charged, unless they further believe from the evidence that the defendant’s life had been threatened and that the defendant had reasonable ground to believe that he was in danger of a serious attack from an enemy at the time and place the pistol was carried which is an affirmative defense, and the burden is on the defendant to establish same.”

This form of instruction in this character of case has been expressly condemned by this court, and since the error in granting it cannot be said to be harmless, it being the only instruction used by the state, we are convinced the appellant’s case was substantially prejudiced thereby, and for that reason the judgment of the lower court will be reversed, and the case remanded. Harvey v. State, 102 Miss. 544, 59 So. 841; Haley v. State, 106 Miss. 358, 63 So. 670. In the cases cited it will be observed the court holds it is not necessary that one must anticipate the attack at a particular time or place. Nor is it necessary for one ivho has been threatened to disarm himself, when he is temporarily in no danger, yet has good reason to anticipate an attack from an enemy within a reasonable time at some proximate place.. Thus it will be seen the instruction given in this case is too narrow to afford the full defense given by the statute. A person who is lawfully armed under the statute might not be able to determine just when or at what pla.ce he may be attacked by his enemy, and for that reason no particular time or place of an expected attack is required to be shown in order to justify the carrying of the weapon.

The counsel for the prosecution here contend that the cases cited above are not in point and the instruction given the state was not erroneous, for the reason that at the time the appellant ivas arrested, carrying the concealed weapon in a closed box, he could not have anticipated any danger then and there, because the pistol was not loaded and was in the sealed box, and therefore he did not expect to use it then in self-defense, consequently was not acting within the statute giving him the right to carry the concealed weapon.

But the answer to this contention is that the appellant was taking the pistol from the post office, preparatory to loading it and carrying it in defense of his person. It is reasonable to say he was then and there carrying the pistol with the. expectation of loading it and using it to defend against his enemy at some time or place in the future. It was not necessary that the pistol be loaded and usable under these circumstances, because he may not have anticipated an attack at that particular time and place, but believed in good faith that he would be in danger at some other time and place, and he was exercising his right to bear the weapon in doing all he reasonably could to prepare himself against an attack. Therefore it will be seen the instruction given the state was very harmful to the appellant.

It is an unusual case in this: A citizen who undertakes to carry a pistol sealed in a box from the post office to his home is arrested and penalized in the sum of one hundred dollars, thirty days in. jail, and all costs of court. The pistol, sealed and unloaded in the box, was a much less dangerous instrument, so far as the peace of the public was concerned, than if it had been loaded and unconcealed in the hands of the owner.

The judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded.