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[Cite as Wilson v. State, 33 Ark. 557, 34 Am.
Rep. 52 (1878).]
Wilson v. State of
1. Criminal Pleading:
Indictment, when should negative exceptions in a statute.
is an exception in the enacting clause of a statute, it must be negatived in the
indictment, but when a statute contains provisos and exceptions in
distinct clauses it is not necessary to state that the defendant does not come
within the exceptions, or to negative the proviso it contains.
Declarations of prisoner. Res gestae.
The statements of a
defendant of his intended use of a pistol at the time he borrowed it of the
witness, and a like statement when he exhibited it to another witness, were
admissible in evidence as part of the res gestae.
3. Criminal Law:
Carrying weapons: Constitutional right to bear arms.
Legislature may to some extent regulate the mode and occasion of wearing war
arms, but to prohibit the citizen from wearing or carrying a war arm except upon
his own premises or when on a journey, or when acting as or in aid of an
officer, is an unwarranted restriction upon his constitutional right to keep and
APPEAL from Arkansas Circuit Court.
Hon. J. A. Williams, Circuit Judge.
English, C. J.:
Chancy Wilson was indicted in the Circuit Court of Arkansas county,
at March term, 1878, as follows:
"The grand jury, etc., etc., accuse Chancy Wilson of the crime of
carrying side arms, committed as follows, to-wit: The said Chancy Wilson in the
county aforesaid, on or about (p.558)the 14th
day of February 1878, did then and there unlawfully carry a pistol as a weapon,
contrary to the statute in such case made and provided, and against the peace
and dignity of the State," etc.
The defendant demurred to the indictment, the court overruled the
demurrer, he was tried and convicted, a new trial was refused him, and he took a
bill of exceptions and appealed.
I. It is submitted for appellant that the indictment is bad, because
it does not negative the exceptions contained in the proviso of the act
under which it was preferred. Acts of 1874-5, p.
When there is an exception in the enacting clause of a statute it
must be negatived; but when a statute contains provisos and exceptions in
distinct clauses, it is not necessary to state in the indictment that the
defendant does not come within the exceptions, or to negative the proviso
it contains. Britton v. State, 10 Ark., 301; Matthews v. State, Ib. 485; Shaver v.
State, Ib. 259; Bone v. State, 18 Ib.
113; 1 Wharton Cr. L. (6 Ed.) p.
The enacting clause of the statute makes it a misdemeanor, punishable
by fine, for any person to wear or carry as a weapon, any pistol, dirk, butcher
or bowie knife, sword or spear in a cane, brass or metal knucks, or razor. In a
proviso, exceptions are made in favor of persons on their own premises,
or travelling through the country on a journey with baggage, officers of the law
engaged in the discharge of official duties, or persons summoned by an officer
to assist in the execution of process, or a private person authorized to execute
It is sufficient for the indictment to charge the offense prohibited
by the enacting clause of the statute, and if the accused is within any of the
exceptions mentioned in the proviso, it is matter of defense.(p.559)
It follows that the court below did not err in overruling the
demurrer to the indictment.
II. It was proven on the trial that appellant borrowed of witness,
Bowers, a large army size six shooter, a revolving pistol, 44 caliber, eight
inches in the barrel, such as is commonly used in warfare, stating at the time
he borrowed it, that he was going over to Pearman's to shoot wild hogs. On the
next day he went to Pearman's, stated to him the purpose of his visit, and while
conversing with him, before going into dinner, pulled the pistol out of his
boot, cocked it a few times to see if it would revolve, and then put it around
under his coat, and went in to dinner.
The court excluded from the jury the statement made by the appellant
to Bowers, when he borrowed the pistol from him, as to the use he intended to
make of it, and a like statement made by appellant at Pearman's where he took
the pistol from his boot in his presence, etc. These declarations were
admissible as part of the res gestae. Pitman v.
State, 22 Ark., 357.
III. The appellant, among other instructions, asked the court to
charge the jury that if they believed from the evidence, that the pistol carried
by him was an army size pistol, such as are commonly used in warfare, they
should acquit; which was refused by the court.
In Fife v. State, 31 Ark., 455, on review of
authorities, we held that the Legislature might constitutionally prohibit the
carrying of such pistols and other arms easily concealed about the person, as
are used in quarrels, brawls and fights between maddened individuals, but that
the Constitution guaranteed to the citizens the right to keep and bear arms for
And it was indicated in the opinion that the Legislature might, in
the exercise of the police power of the State, regulate the mode of wearing war
arms, and no doubt the occasions of wearing such arms may be to some extent
Thus it has been made an offense to wear a pistol, etc., concealed
(Gantt's Dig., sec. 1517) and this may well apply to
the character of the pistol used as a war arm.
So hunting with a gun with intent to kill game, or shooting for
amusement, on the Sabbath, are made offenses. Gantt's Dig.,
No doubt in time of peace, persons might be prohibited from wearing
war arms to places of public worship, or elections, etc. Andrews v. State, 3 Heiskel, 182.
But to prohibit the citizen from wearing or carrying a war arm,
except upon his own premises or when on a journey traveling through the country
with baggage, or when acting as or in aid of an officer, is an unwarranted
restriction upon his constitutional right to keep and bear arms.
If cowardly and dishonorable men sometimes shoot unarmed men with
army pistols or guns, the evil must be prevented by the penitentiary and
gallows, and not by a general deprivation of a constitutional privilege.
The judgment is reversed and the cause remanded for a new