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[Cite as Hopkins v. Commonwealth, 66 Ky. (3
Bush) 480 (1868).]
Case 6--INDICTMENT--June 3.
Hopkins vs. Commonwealth.
APPEAL FROM GALLATIN CIRCUIT COURT.
1. On motion for a new trial, the grounds relied on
must be specified in writing. (See Civil Code, sec.
372.) Errors not so stated cannot be noticed by the circuit court, and
cannot be Considered by the Court of Appeals.
2. On the trial, on an indictment for carrying a
concealed pistol, exculpatory proof, that the defendant had been shot at by
strangers more than two years before, and that, for precautionary security of
self-defense against a like attack, he had carried a pistol ever since, was
3. "If the jury believe, from the evidence, that
the defendant, within one year before the finding of the indictment, carried a
pistol, concealed on or about his person, and that he had no reasonable ground
to believe, and did not believe, that his person was in danger of great
bodily harm, they should punish him by a fine not less than fifty dollars nor
more than one hundred dollars." Held--That the superfluous words,
"and did not believe," in the above instruction, makes it more
favorable to the defendant than he had a right to demand or expect.
J. J. Landram, / For
Appellant, cited-- Revised Statutes,
secs. 1, 2, Stanton, p. 414. Criminal
Code, secs. 342, 226. 1 Met., 378; Payne vs.
Commonwealth. Bouvier's Law Dictionary, "Res
Gestae." 1 Greenleaf's Ev., sec. 108. 2 Hill, N.Y., 248, 257; Bartholemy vs. The
John Rodman, Attorney
General, / For Appellee, cited-- Criminal Code, sec. 267, subsec. 4.(p.481)
JUDGE ROBERTSON delivered the
opinion of the court:
The appellant complains that the circuit court
erred in overruling his motion for a new trial on an indictment for carrying a
concealed pistol, which was "a deadly weapon;" on the trial of which
the jury assessed, and the court adjudged, a fine of fifty dollars.
The motion was made on two grounds, stated in writing; and, in
addition to these, the appellant urges in this court another error, not assigned
in that motion--and that is, that the judge gave an oral instruction contrary to
the provision in the Criminal Code, which requires all instructions in criminal
prosecutions, including constructively such as are merely penal, to be addressed
to the jury in writing; but if, as presented by the record, this might have been
made an available error by a proper presentation of it for revision, the failure
to suggest it as a ground for a new trial excludes it from the judicial
consideration of this court. The Code requires all the grounds relied on for a
new trial to be specified in writing; consequently, no error not so stated could
be noticed by the circuit court, but all such pretermitted objection must be
treated as waived in that court, and is, necessarily, beyond the sphere of this
court's revisory jurisdiction, which is only to decide whether, on the grounds
properly before it, the circuit court erred in its judgment. (Section 372, Civil Code.)
There having been sufficient proof that the appellant, on a certain
day, carried a pistol concealed about his person, he attempted exculpation by
proving that he had been shot at by strangers more than two years before, and
that, for precautionary security of self-defence against a like attack, he had
carried a pistol ever since. These facts were wholly irrelevant, as there was
(p.482)neither proof nor apparent cause for
apprehension of any such impending danger; and, therefore, there was no error in
refusing to admit another witness to the same facts.
This disposes of the first ground for a new trial cognizable by this
The next and only remaining ground is, that the circuit court erred
in giving the following instruction: "If the jury believe, from the evidence,
that the defendant, within one year before the finding the indictment, carried a
pistol concealed on or about his person, and that he had no reasonable ground to
believe, and did not believe, that his person was in danger of great bodily
harm, they should punish him by a fine, not less than fifty dollars nor more
than one hundred dollars."
The appellant's counsel, assuming that the appellant himself was
rightfully the best judge of the necessity or prudence of carrying a concealed
pistol for self-defense, and the only person who could know whether he, in fact,
apprehended danger, objects to so much of the instruction as requires reasonable
ground for apprehension. Were this erroneous, the salutary law against the
pestilent and alarmingly prevalent habit among all classes, and especially among
young men, and even boys, of wearing concealed arms, through false and cowardly
pride, and for mock chivalry, might soon become practically a dead letter. A
statute so beneficent and so often and so easily evaded, should be vigilantly
upheld, and stringently enforced by the judiciary for repressing a dishonorable
and mischievous practice, which, licensed or unlicensed, leads, almost daily, to
causeless homicides and disturbances, which would otherwise never be
perpetrated; and to that end, the accused should always be required to prove
that he carried a concealed weapon (p.483)only
for the purpose of defending himself or family or property against an impending
attack, reasonably apprehended, and which, if attempted, would justify the use
of some such means of defense. But the superfluous addition of the words, "and
did not believe that his person was in danger," relieved the instruction from
the counsel's criticism, and makes it more favorable to the appellant than he
had a right to demand or expect.
Wherefore, the judgment is affirmed.