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[Cite as Lockett v. State, 47 Ala. 42
LOCKETT v. THE STATE.
INDICTMENT FOR CARRYING CONCEALED WEAPONS.
1. Oath of jury, recital in record as to; what
sufficient.--Where the record recites that the jury "were duly sworn,
according to law," this sufficiently shows that the oath required by law was
2. Revised Code, section 3555 of; word
"traveling" used in, defined.--The word "traveling" used in section 3555 of the Revised Code means to pass from place to
place, whether for pleasure, instruction, business, or health, and the length of
the journey does not destroy the character of the occupation. (Saffold, J.,
3. Same.--A person who is a passenger and
passing on a railway train from Selma to Marion in this State, a distance of
twenty-eight miles, to seek employment, is "traveling" in the sense of the
statute, and may carry a pistol concealed about his person. (Saffold, J.,
Appeal from Circuit Court of Perry.
Tried before Hon. M. J. Saffold.
Reid Lockett, freedman, being indicted and on trial for carrying a
pistol concealed about his person, the State introduced a witness who testified,
that some time in August, 1871, while coming from Selma on the passenger train,
he noticed defendant, and some time after this he saw the conductor eject
defendant from the train for drunken and boisterous conduct. At the time a
brakeman, who was aiding the conductor, took from Lockett a pistol which Lockett
had drawn, and immediately afterwards defendant exhibited another pistol, both
pistols having been previously concealed about his person. Witness thought from
defendant's action that he was a train hand, but was not (p.43)positive about it. Defendant was traveling on the train,
and may have been a passenger."
Defendant introduced a witness who testified, that defendant's
regular occupation was that of a brick mason and plasterer, although he had
known him to do other kinds of work; that he was at Selma a good part of his
time; that he (witness) did not know whether defendant was a train hand or not
at the time referred to.
Powhattan Lockett testified, that he saw defendant on the cars after
passing "The Marion Junction," and invited him to go to Marion to do some
plastering for him. Defendant had been working at the Junction, but agreed to do
the work which witness wished to have done. It was admitted that it is
twenty-eight miles from Selma to Marion; that the train from which defendant was
put off was a passenger train running from Selma to Marion; that it is fourteen
miles from Marion Junction to Marion; and that the defendant was put off a short
distance after leaving the Junction. This was all the evidence.
The court, at the request of the solicitor, charged the jury, "if
they believed the evidence, they must find the defendant guilty." The defendant
excepted to this charge, and requested the court, in writing, to charge the jury
that "if they believed from the evidence that defendant was engaged in
traveling, and was on the cars as a passenger from Selma to Marion, a distance
of twenty-eight miles, that he had a right to carry concealed weapons, and that
they must find the defendant not guilty." The court refused to give this charge,
and defendant duly excepted.
The defendant then asked the court to charge the jury, that "if they
believed from the evidence that defendant was traveling and on the cars from the
Junction to Marion, a distance of fourteen miles, that then they must find the
defendant not guilty."
The court refused to give the charge, and defendant duly
The jury brought in a verdict of guilty, and assessed a fine of fifty
dollars against the defendant. The judgment-entry, after reciting defendant's
plea and joinder, &c., is as follows: "Thereupon, came a jury of good and
lawful men, (p.44)to-wit: M. W. Oliver, and
eleven others, who being duly empaneled and sworn according to law, well and
truly to try the issue joined, upon their oaths do say," &c.
The errors assigned are--
1st. The charge given and the charges refused by the court.
2d. That the judgment-entry shows that the jury were not properly
P. Lockett, and A. A. Wiley, for appellant.
J. W. A. Sanford, Attorney-General, contra.
PETERS, J.--This is an indictment under the
statute for carrying a pistol concealed about the person of the accused. There
was a conviction in the court below, and the defendant was fined fifty dollars.
From this conviction he appeals to this court.
The record shows that the jury was "duly empaneled and sworn
according to law, well and truly to try the issue joined." This could not be,
unless the oath administered was that laid down in the Revised Code. It was
The defendant, in the court below, for his defense relies on the
fact that he was "traveling" at the time when the offense charged is alleged to
have been committed. The statute creating this offense is in the following
words: "Any person who, not being threatened with or having good reason to
apprehend an attack, or traveling, or setting out on a journey, carries
concealed about his person a bowie-knife, or any other knife or instrument of a
like kind or description, or a pistol, or fire-arms of any other kind or
description, or an air-gun, must be fined, on conviction, not less than fifty,
nor more than three hundred dollars; and may also be imprisoned in the county
jail, or sentenced to hard labor for the county, for not more than six
months."--Revised Code, § 3555; [State v.
Reid] 1 Ala. 612 [35 Am.
Dec. 44]; [Owen v. State] 31 Ala. 387; [Sears v. State] 33 Ala. 347. The testimony
tends to show, that when the defendant was "traveling on the train and may have
been a passenger," on the rail-way between the city of Selma and the town of
(p.45)Marion in this State, he carried concealed
about his person a brace of pistols. It was shown, that the accused was a
brick-mason, and that he resided near Selma, and had been invited to Marion to
do some brick work and plastering there. It was admitted that the distance
between these two places was about twenty-eight miles, and that it was about
fourteen miles from Marion, where the defendant was put off the train by the
conductor, on account of his improper and boisterous conduct. It was there that
he exhibited his pistols.
On this evidence the defendant moved the court to give a written
charge to the jury in the following language: "That if they believe from the
evidence that the defendant was engaged in traveling, and was on the cars as a
passenger from Selma to Marion, a distance of twenty-eight miles, that then he
had a right to carry concealed weapons, and that they must find the defendant
not guilty." This charge was refused, and defendant excepted. I think this was a
proper charge under the evidence, and should have been given. The word
"traveling" has no very precise or technical meaning when it is used without any
limitation. Its primary and general import is to pass from place to place,
whether for pleasure, instruction, business, or health. A person may travel to
seek employment as well as to seek amusement, information, or
health.--Webster's Dict. Unabridged, Roget's Thesaurus of
English Words, p.109, word Travel. The length of the journey or its
continuance does not destroy the character of the occupation. The proofs in this
case do not make it certain that the defendant may not have been engaged in an
honest journey to a neighboring town to procure employment in his trade. He
might have done the same thing, by a trip to California or to Mexico. In the
latter case, to be caught with pistols concealed about his person would be no
crime. And there is no very clear reason why a different interpretation should
be placed on his conduct in the two cases, because the journey was shorter in
the one case than it was in the other, when his purpose in both cases was to
seek employment in his occupation. Nor is it required that he should have any
(p.46)necessity for the use of his pistols. It
is enough if he was traveling on a journey, long or short. This is the language
of the statute above cited.
There was also a charge given by the court below, which was the
reverse of that set out above. This was objected to by the defendant. Such a
charge cannot be maintained upon the reasoning above shown. It excluded all
consideration of the evidence that the defendant was traveling when he exhibited
his pistols. There was some evidence tending to show this, and however slight it
might have been, it was entitled to its proper weight. But the charge of the
court, which was given and excepted to, was calculated to exclude this. This was
also error. The court reluctantly concur in the reversal of this cause, but
think that the question of "traveling" should have been left to the jury.
The judgment of the court below is reversed, and the cause is
remanded, and a new trial is ordered. In the meantime the defendant said Reid
Lockett, will be held to answer the indictment in this case until discharged by
due course of law.
B. F. SAFFOLD, J., (dissenting.)--The appellant
was indicted for carrying concealed weapons under section 3555 of
the Revised Code. He lived near Selma, and was going to Marion, a
distance of about twenty-eight miles. Fourteen miles from Marion, or half way
his journey, he was put off the cars by the conductor for improper and
boisterous conduct, and at that time he exhibited pistols.
The court holds that his passage from Selma to Marion was such a
traveling or going on a journey as relieved him from the penalty of the
No more indefinite words could have been used in a penal statute
than those of "traveling" or "setting out on a journey." But it is manifest that
they were not employed in their most extensive signification. This would nullify
the law, because any passing from one place to another, no matter how near,
would be a traveling, and to prohibit the possession, or even the carrying of
arms at home, would be contrary to the constitution.(p.47)
The evil sought to be remedied was the insecurity of life caused by
the practice of carrying concealed weapons, and the consequent demoralization of
society. It was deemed criminal for a person to put in his pocket a weapon to
kill his friends and acquaintances in a chance quarrel, or premeditated attack
by himself. The distance of the travel was therefore intended to be such as
would take him beyond the circle of his general acquaintance, and amongst
strangers for whose conduct he was in no wise responsible, either by his precept
or example, and against whom he was not protected by the consideration we
exhibit for those whom we know. Since travel has been so much expedited by
railroads, distance has almost given way to time as its measure. I would
therefore much prefer to construe the traveling or setting out on a journey,
intended by the statute, to mean a going beyond the jurisdiction of the
particular law, that is, beyond the State.