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[Cite as Morton v. State, 46 Ga. 292
SAMUEL T. MORTON, plaintiff in error, v. THE STATE OF GEORGIA,
defendant in error.
(Atlanta, July Term, 1872.)
1. Criminal Law--Concealed
Weapons--Opinion of Witness as to Motive.--Where a defendant is on trial
for carrying concealed weapons, evidence as to his motive in placing the pistol
in his pocket is inadmissible. (R.)
2. Same--Same--Charge of Court.--It was not
error in the Court to charge "that the question for the jury to determine upon
the evidence was, whether the defendant had or carried about his person a
pistol, not being a horseman's pistol, and not being had or carried about his
person in an open manner, and fully exposed to view, that if he so had, as
charged in the indictment, the time that he so had it was not important; if he
for any length of time, however short, for a moment so had it contrary to law,
he was guilty of the offense, otherwise not." (R.)
Criminal law. Concealed weapons. Opinion of
witness. Before Judge Harrell. Miller Superior Court. April Term, 1872.(p.293)
Samuel T. Morton was placed on trial for the
offense of carrying "about his person a pistol and not in an open manner and
freely exposed to view, (said pistol not being a horseman's pistol.") The
defendant pleaded not guilty.
The only witness sworn was F. M. Platt, who
testified substantially as follows: That he saw defendant going across the
public square in Calquitt, in said county, with a small-sized repeater pistol in
his hand, firing the same off; that witness, as marshal of said town, followed
to arrest him; that when he came up to him, defendant put the pistol in his
pantaloons pocket so that it could not be seen; that defendant only kept the
pistol in his pocket a half minute or a minute, but while it was so kept it was
entirely concealed from view; that witness thinks defendant put the pistol in
his pocket to keep witness from taking it; that afterwards defendant took the
pistol out, and squatting down, unlatched the barrel and started to take the
cylinder out, when witness seized the pistol and took it away from him.
The defendant's counsel asked the witness "what was
the reason that defendant put the pistol in his pocket?" Upon objection, the
Court refused to allow said question to be asked.
The jury found the defendant guilty; whereupon, he
moved for a new trial upon the following grounds, to-wit:
1st. Because the Court erred in rejecting the
evidence showing the motive of defendant in placing the pistol in his
2d. Because the Court erred in charging the jury as
follows: "That the only question for the jury to decide was whether the
defendant had for one moment on his person a pistol, not in an open manner and
fully exposed to view, the same not being a horseman's pistol, and if they
should find in the affirmative, they should find the defendant guilty," thereby
leading the jury to believe that they could not consider the intention of the
3d. Because the verdict is contrary to evidence and
the weight of evidence.(p.294)
The presiding Judge attached the following note to
the second ground:
"The Court charged that the question for the
jury to determine upon the evidence was whether the defendant had or carried
about his person a pistol, not being a horseman's pistol, and not being had or
carried about his person in an open manner and fully exposed to view; that if
he so had, as charged in the indictment, the time that he so had it was not
important, if he for any length of time, however short, for a moment so had it
contrary to law, he was guilty of the offense, otherwise not."
The Court overruled the motion for a new trial and
plaintiff in error excepted.
W. P. Sims; John E. Donaldson; H. C. Sheffield;
Isaac Bush; H. Fielder, for plaintiff in error.
J. S. Flewellen, Solicitor General, represented by
B. S. Worrill, for the State.
WARNER, Chief Justice.
The defendant was indicted for a misdemeanor in having and carrying
about his person a pistol concealed, in violation of the 4454th
section of the Code. On the trial of the case the jury found defendant
guilty. A motion was made for new trial on the several grounds specified in the
record, which was overruled by the Court and defendant excepted. There was no
error in the refusal of the Court to allow the witness to testify as to the
motive of the defendant, in putting his pistol in his pocket. The witness could
legally only testify as to facts, and it was a question for the jury to
determine what were the motives of the defendant, from the facts proved by the
witness. In view of the evidence disclosed in the record, there was no error in
the charge of the Court to the jury. In our judgment there is sufficient
evidence in the record to sustain the verdict, and the motion for a new trial
was properly overruled. The practice of carrying concealed weapons (p.295)is a great evil, which the law prohibits, and
the Courts and juries should rigidly enforce the law against all who violate
Let the judgment of the Court below be affirmed.