I am compelled to dissent from the majority opinion. I do not complain of the definition given by this opinion to the words "on or about" when such words are taken alone, but I do think that the opinion fails to take into consideration that the statute provides not only shall the deadly weapon be "on or about" the person of the one accused, but also that such person shall carry such deadly weapon "on or about" his person. If he does carry a concealed deadly weapon in a place where it is reasonably available or accessible, as for instance in a basket slung on his arm, I concede that the statute has been violated. But I believe that the word "carry" ought to be given some importance in the construction to be given this statute, at least as much importance as the words "on or about." The court ignores the definition of the word "carry" as given in the case of Avery v. Commonwealth, 223 Ky. 248, 3 S.W.2d 624, 626. In that case, we said:
"To 'carry' the weapon means that it must be on the person or so connected or annexed to the person that the weapon is carried along as the person moves. If it is in the pocket or in the clothing of the person, or if it is in some receptacle attached to or carried by the person as he moves, he is carrying the weapon."
This definition was adopted and approved in the subsequent case of Commonwealth v. Nunnelley, 247 Ky. 109,56 S.W.2d 689, 88 A.L.R. 805. This definition does not include the movement of a deadly weapon caused by a vehicle even though such vehicle be controlled or operated by the person accused. Experience has demonstrated, especially in these latter days of bandits and highwaymen, that the statute as written has put a heavy handicap on the well-intentioned
citizen who desires to obey the law and that he is at the mercy of a bandit or highwayman who ever ignores the law. The well-intentioned citizen hates to hit below the belt by flouting the law against carrying concealed and deadly weapons. The bandit feels no compulsion to observe the Marquis of Queensberry rules. This being true, we ought not by a strained construction extend the law beyond its literal intendment. If the law should be amended to take care of the ill disposed in a more intelligent way than it now does, that is for the Legislature to accomplish and not the court. At least we can by virtue of the judicial process, as Justice Cardozo expresses it, protect the citizen who must necessarily, be abroad on unfrequented highways at all hours of the day and night from those who would rob or assault him. Under the majority opinion, if a person riding along the highway in his automobile has a pistol on the seat beside him uncovered, he has not violated the law, for such pistol is not concealed; but if perchance there is a handkerchief or a lap robe over it, then he has violated the law. The absurdity of this is so apparent to me that I cannot believe the statute was ever meant to be construed as it was in this case. To the party by the roadside, the pistol on the seat of a speeding automobile is effectually concealed whether it lie exposed on the seat or be covered by a lap robe. The object of the law against carrying concealed and deadly weapons was to prevent men in sudden quarrel from drawing from their persons deadly weapons and using them, and to give others who had to come in contact with them the notice either that such men were armed if the arms were exposed or the security of the presumption, if no arms were visible, that they were unarmed. How different a situation do we have presented in the case of a gun on a seat of a speeding automobile. The evil aimed at by the statute in such state of case cannot be affected by the fortuitous circumstance of whether the gun be covered by a handkerchief or not. Clearly there is a factual distinction between such a state of case and that of a gun being carried by an individual who intermingles with his fellowman. Such a difference born of experience should lead to a different construction of the statute than that placed upon it by the majority opinion. As Mr. Justice Holmes says in his Common Law:
"The distinctions of the law are founded on experience,
not in logic. It therefore does not make the dealings of men dependent on a mathematical accuracy."
I admit that in the case before us one can scarcely have sympathy for the appellant, for he was carrying a small-sized arsenal in his car. But be that as it may, as said once before by me in the case of Commonwealth v. Flatt, 219 Ky. 185,292 S.W. 785, we ought not, despite the adage, permit hard cases to make bad law. The majority opinion has but added one more handicap to the law-abiding citizen in his effort to protect himself against ill doers.
I am authorized to state that Judge Clay concurs in this dissent.