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[Cite as Jones v. State, 51 Ala. 16 (1874).]
INDICTMENT FOR CARRYING CONCEALED WEAPONS.
Carrying concealed weapons; what constitutes.--To constitute concealment within the meaning of the statute against carrying concealed weapons (Rev. Code, § 3555), it is sufficient if the weapon be hidden from ordinary observation, although it may be seen on closer examination; and this must be determined by the jury. But, if there is any evidence tending to show that the weapon was not concealed, it is error to refuse to charge the jury, on request, that they must acquit the defendant unless they are convinced, from all the evidence, that he did carry it concealed about his person.
From the Circuit Court of Geneva.
Tried before the Hon. J. McCaleb Wiley.
The prisoner in this case was indicted for carrying a pistol concealed about his person, and pleaded not guilty to the indictment. On the trial, as the bill of exceptions states, one (p.17)Birch was introduced as a witness for the prosecution, who testified that, on a particular day within the period covered by the indictment, he walked with the defendant to a spring, where the defendant knelt down to drink; "that while kneeling down, his coattail fell over behind, and witness saw the end of a pistol on him, and in his rear; that when the defendant got up, his coat fell over the pistol, and witness did not see it any more; and that he did not know whether the pistol could have been seen on the defendant in front at the time, as he did not look for it." The defendant then introduced one Crutchfield as a witness, who testified that, on the day mentioned by the witness Birch, he and the defendant had been hunting hogs together in the woods; "that the defendant carried his pistol, a portion of the day, by the belt at the horn of his saddle, and had it belted around him the rest of the time, so that the butt-end could be seen all the time in front of him; that he saw the butt-end of the pistol in front of the defendant a short time before he and Birch started to the spring, but did not see it at the time they started, because his attention was not called to it then." This being all the evidence, the defendant asked the court to give the following instructions in writing to the jury: "1. If the jury are not convinced, from all the evidence, that the defendant did carry the pistol concealed about his person, then they must find him not guilty, although they might also believe, from the evidence, that the witness Birch only saw the pistol while they were at the spring. 2. If the jury believe, from the evidence, that the pistol could have been seen in front of the defendant, then he is not guilty, although they may also believe, from the evidence, that the witness Birch did not see it while walking by his side to the spring." The court refused both of these charges, and the defendant excepted to their refusal; and their refusal is now assigned as error.
W. D. Roberts and F. M. Wood, for the prisoner.
Ben. Gardner, Attorney General, for the State.
B.F. SAFFOLD, J.--To constitute concealment, it is not necessary that the weapon may be seen from without, by inspection, or examination, more or less close; it is sufficient if it is hidden from ordinary observation; and this must be determined by the jury. Of course, if the jury are not convinced of its being carried concealed, the defendant must be acquitted. One witness testified, that the pistol was strapped around the defendant's waist, in such manner as to exhibit the handle of it to persons in front of him. The court erred in refusing to charge the jury, as requested, that they must acquit (p.18)the defendant, if they were not convinced, from all the evidence, that he did carry the pistol concealed about his person.
The judgment is reversed, and the cause remanded.