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[Cite as State v. Speller, 86 N.C. (11 Ken.)
STATE v. L. R. SPELLER.
Indictment--Carrying Concealed Weapons.
1. Carrying a pistol concealed in violation of the
act of 1879, ch. 127, even for self-protection, is not
excused by a communication of threats of violence made against the
2. By article one, section
twenty-four, of the constitution, the "right to keep and bear arms" shall
not be infringed, but the "practice of carrying concealed weapons" may be
prohibited; and even without this constitutional provision, the court say that
the legislature may by law regulate the right to bear arms in a manner
conducive to the public peace.
Indictment for misdemeanor
tried at Fall Term, 1881, of Washington Superior Court,
before Bennett, J.
The defendant was charged with carrying a concealed weapon contrary
to the statute--Acts 1879, ch. 127.
At the trial, one Cahoon was introduced as a witness by the state,
and testified that he saw the defendant have a pistol at a certain place, away
from his own premises. The pistol was concealed in the pocket of his pants. This
was on Monday after the defendant and one Jenkins had a difficulty on Saturday,
when Jenkins had attempted to cut him with a razor. The defendant's counsel
proposed to ask this witness what the defendant said as to the possession of the
pistol, but on objection on the part of the state, was not permitted to do
It was further given in evidence by the state that after their
difficulty on Saturday, Jenkins and defendant, each applied for and procured a
state warrant against the other. When the officer having the warrant against the
defendant arrested him on Monday, he asked him if he had a weapon, and was told
that he did not, but on searching him found a pistol concealed in the hip pocket
of his pants.(p.698)
On the part of the defence it was shown that after the difficulty on
Saturday, Jenkins had threatened the defendant with violence, and that his
threats had been communicated to the defendant.
The defendant himself was examined as a witness, and his counsel
proposed to ask him whether Jenkins had assaulted him with a razor on the
Saturday before his arrest on Monday, but upon objection on the part of the
state, it was not allowed. The defendant then testified that he was not the
owner of the pistol, and that he had procured it after the assault upon him, and
after he had been informed of the threats made by Jenkins to take his life. He
got it to defend himself, and out of fear of Jenkins, from whom he lived only
about one-half mile. He lived four miles from the nearest justice, and a mile
and a half from the nearest peace officer.
The defendant's counsel asked the court to charge the jury if the
defendant had reason to believe, and did believe, that his life was in danger,
and took the pistol with him solely for his own protection, while he sought a
justice to complain to, he would not be guilty.
His Honor declined so to charge, and instructed the jury that if they
were satisfied that the defendant when not upon his own premises had carried the
pistol concealed about his person, he was guilty under the statute, even though
Jenkins had assaulted him, and made threats against him, and he had procured the
pistol and carried it in consequence of those threats. Verdict of guilty,
judgment, appeal by defendant.
Attorney General, for the State.
Mr. W. A. Moore, for defendant.
Ruffin, J. This court is
of the opinion that neither one of the defendant's exceptions should be
sustained. The first, if for no (p.699)other
reason, because the case fails to set out the purpose of the declaration of the
defendant, which he sought to make proof of, and which was excluded by the
court; and we therefore cannot see its pertinency, or know that any harm came to
the defendant on account of its exclusion.
It would be a vain thing to disturb a verdict and judgment because
of the exclusion of testimony which ought not, and from its very nature could
not, have any bearing upon the case, and to avoid doing a vain thing, the courts
invariably require it of him who complains of the improper exclusion of
testimony, that he should plainly set forth in his exception its purport, or
substance, in order that it may be seen to be relevant, and such as might aid
the jury in making up their verdict.
We might not feel disposed to enforce this rule in all its rigor
against a defendant in a criminal action, so long as we could see that there was
a chance even of his being injured by it. But in a case like the present, where
the defendant himself became a witness and testified, directly, to what he
sought to establish, indirectly, by his declarations made at the time, we can
have no hesitation in doing so. The only possible advantage he could have
derived from the rejected testimony, was its tendency to confirm his sworn
statement, that he carried the pistol because of his apprehended danger, and
taking that statement to be true, while it possibly might have influenced the
court in affixing the punishment, it should not have had, as we shall presently
see, any weight with the jury in determining the issue as to the guilt or
innocency of the defendant.
The exception taken to the charge of the court, as we are told at
the bar, is based upon the supposed unconstitutionality of the statute under
which the defendant is prosecuted, and the lack of lawful power in the
legislature to deprive a citizen at any time of his right to bear arms, and
especially when needed to repel a threatened assault from which great bodily
harm might reasonably be apprehended.(p.700)
We concede the full force of the ingenious argument made by counsel
upon this point, but cannot admit its application to the statute in question.
The distinction between the "right to keep and bear arms," and "the
practice of carrying concealed weapons" is plainly observed in the
constitution of this state. The first, it is declared, shall not be infringed,
while the latter may be prohibited. Art. I, sec. 24.
As to the surest inhibition that could be put upon this
practice deemed so hurtful as to be the subject of express mention in
the organic law of the state, the legislature has seen fit to enact that at no
time, and under no circumstances, except when upon his own premises, shall any
person carry a deadly weapon concealed about his person, and it is the
strict duty of the courts, whenever an occasion offers, to uphold a law thus
sanctioned and approved. But without any constitutional provision whatever on
the subject, can it be doubted that the legislature might by law
regulate this right to bear arms--as they do all other rights whether
inherent or otherwise--and require it to be exercised in a manner conducive to
the peace and safety of the public? This is as far as this statute assumes to
go. It does not say that a citizen when beset with danger shall not provide for
his security by wearing such arms as may be essential to that end; but simply
that if he does do so, he must wear them openly, and so as to be seen by those
with whom he may come in contact. The right to wear secret weapons is
no more essential to the protection of one man than another, and surely
it cannot be supposed that the law intends that an unwary advantage should be
taken even of an enemy. Hence it takes no note whether the secret carrying be
done in a spirit of foolish recklessness, or from a sense of apprehended danger,
but in either case declares it to be unlawful. Indeed, were there any difference
made, we might expect it to be (p.701)against
one who felt himself to be under some pressure of necessity, since in his case
the mischievous consequences intended to be avoided, might the more reasonably
be anticipated. And it would be a strange passage in the history of legislation
to enact that it shall be unlawful for any person to carry concealed weapons
about his person, except when it may be supposed he shall have occasion
to use them. This disposes of the defendant's last exception.
If the fact that he had been previously assaulted could furnish no
justification, or in any way affect the issue to be tried by the jury, it was
certainly proper to exclude the evidence with regard to it.
No error. Affirmed.