Wynne v. State , 123 Ga. 566 ( 1905 )

Lumpkin, J.

(After stating the facts.) 1. One ground of the motion for a new trial complains that the court allowed a. witness to testify that he thought the defendant was in a position to see whether other people brought guns from Terrell’s residence; that from the position where the defendant was he could- have seen this; and that other people did bring guns to the scene of the difficulty. It does not appear what ground of objection was urged to this evidence when it was introduced. It is stated in the motion for a new trial that “ said question and answer are irrelevant, and said answer is purely an opinion of the witness without having any facts upon which such opinion is based.” This was the opinion of the attorney when movant’s motion for a new trial was made, but whether this ground of objection was urged at the time of the trial does not appear. It can not, therefore, be considered.

2-4. The purpose of the Penal Code, § 342, is to protect the public against the danger arising from allowing persons to carry deadly weapons to courts of justice, or election grounds or precincts, or places of public worship, or any other public gathering in this State. The exception of militia muster grounds is for the purpose of allowing parades and ■ gatherings where troops necessarily carry deadly weapons! So, also, sheriffs, constables, marshals, policemen, or other arresting officers or their posses, acting in the discharge of their official duties, and for the preservation of the public peace, are excepted from the operation of the law. The wholesome purpose of this statute would be much limited by putting a narrow construction upon the expression “any other public gathering.” A barbecue on the fourth of July, at which the public is assembled in considerable numbers, constitutes a public gathering within the meaning of the statute. Reliance is placed by the defendant upon the decisions in Modesette v. State, 115 Ga. 582, and Culberson v. State, 119 Ga. 805. They hold that coming into possession of a deadly weapon while at a public gathering is not the same thing as carrying the weapon to such gathering, and will not authorize a conviction under the Penal Code, § 342. Those decisions do not control the present case. The defendant carried his gun to a house forty or fifty yards distant from the point where the barbecue was to occur, and deposited it there. During the gathering, and while the riotous conduct was prevalent, he left the gathering and went to the house, obtained the gun, and returned to the crowd. It is true that he stated that he left tbe gun at the house by accident, and that he obtained it for the purpose of carrying it home and shooting some young rabbits; but, in view of the coincidence of his obtaining the gun and returning to the crowd about the same time others procured guns from the same house, the jury evidently did not believe his statement. They were not bound to do so, and the evidence warranted their finding. That some of the crowd during the day went into Terrell’s yard and sat in the shade did not bring this case within the decisions above cited. We think that neither the judge nor the jury erred.

Judgment affirmed.

All the Justices concur, except Simmons, G. J., absent.