City of Collins v. Fife

McLain, C.

The appellant was convicted in the mayor’s court of the city of Collins for carrying a pistol concealed. She appealed to the circuit court of Covington county, and was there acquitted. Upon the trial, her defense “was setting out on a journey,” and she asked and received the following instruction: ‘ ‘ The court charges the jury, for the defendant, that unless the city of Collins established the guilt of the defendánt to a moral certainty and to the exclusion of every reasonable doubt, both that the defendant carried the pistol concealed, and that at the time she was not justifiable under the law, then it is the sworn duty of the jury to find the defendant not guilty.”' The city .of Collins, feeling aggrieved at 'the giving of said instruction, appeals to this court under authority of section 40 (2), Code 1906.

The granting of the above instruction by the court was-manifest error. Any one indicted for carrying concealed a deadly weapon, nnder section 1105, Code of 1906, can show as a defense, among other things, “that he was traveling and was not a tramp, or was setting ont on a journey, and. was not a tramp.” Bnt the same section provides: “And the burden of proving either of said defenses shall be on the accused.” But the above instruction in effect places that burden on the state.

Reversed.

Per Curiam.

The above opinion is adopted as the opinion of the court, and, for the reasons therein indicated by the commissioner, the case is reversed.