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[Cite as Owen v. State, 31 Ala. 387
OWEN v. THE STATE.
INDICTMENT FOR CARRYING CONCEALED WEAPONS.
1. What constitutes such offense.--A person who, in
the room of another in which there are several persons, bears in his vest pocket
a pistol, which is willfully or knowingly covered or kept from sight, is guilty
of a violation of the statute (Code, § 3274) against carrying concealed
From the Circuit Court of Tuskaloosa.
Tried before the Hon. John Gill Shorter.
The bill of exceptions in this case is as follows:
"On the trial of this case, the State introduced
one Hutchinson as a witness, who testified, that within twelve months before
the finding of the indictment, he went into the room of one Charles S.
Williams, in said county of Tuskaloosa; that he found in the room Mr.
Williams, the defendant, and two or three other young gentlemen; that he
remained in the room some twenty minutes, or half an hour; that, while there,
he asked the defendant to give him a cap; that the defendant put his hand into
his vest (p.388)pocket, and took a small
pistol out of his pocket, to get a cap; that the pistol was the smallest he
had ever seen, and he requested the defendant to let him look at it; that the
defendant did so, and, when he and the others had looked at it, it was handed
back to the defendant, who again put it into his vest pocket; that he did not
see it until the defendant had taken it out of his pocket, and could not see
it after he had put it into his pocket as stated; that he did not know whether
the pistol was loaded or not; and that, when he went out, he left the
defendant in the room.
"This was all the evidence in the cause; and thereupon the
defendant asked the court to charge the jury, that unless they believed from
the evidence that the defendant had the said pistol when he went into the said
room, or took it with him when he left the room, merely having the pistol in
his pocket, as stated, was not a carrying of the pistol concealed about his
person, within the meaning of the statute. The court refused to give this
charge, and the defendant excepted."
E. W. Peck, for the appellant.
M. A. Baldwin, Attorney-General, contra.
RICE, C. J.--The defendant was indicted for a
violation of section 3274 of the Code, which provides, that
"any one who carries concealed about his person a pistol, or any other
description of fire-arms, not being threatened with, or having good reason to
apprehend an attack, or traveling, or setting out on a journey, must, on
conviction, be fined not less than fifty, nor more than three hundred
That section was not designed to destroy the right, guarantied by the
constitution to every citizen, "to bear arms in defense of himself and the
State"; nor to require them to be so borne, as to render them useless for the
purpose of defense. It is a mere regulation of the manner in which certain
weapons are to be borne; a regulation, the object of which was to promote
personal security, and to advance public morals. To that end, it prohibits the
bearing of certain weapons, "in such a manner as is calculated (p.389)to exert an unhappy influence upon the moral feelings of
the wearer, by making him less regardful of the personal security of
others."--The State v. Reid, 1 Ala. 612 [35 Am. Dec.
The word "carries," in the section above cited, was used as the
synonym of "bears"; and the word "concealed," as therein used, means, willfully
or knowingly covered, or kept from sight. Locomotion is not essential to
constitute a carrying within the meaning of that section. A person who, in the
room of another in which there are two or three other persons, bears in his vest
pocket a pistol, willingly or knowingly covered or kept from sight, without any
of the excuses therefor recognized by law, is a violator of the section above
cited. The charge asked by the defendant in this case, is in conflict with the
law as thus laid down by us. That charge does not simply assert the general
proposition, that merely having a pistol in one's pocket in a room, is not a
"carrying" of the pistol concealed about his person, within the meaning of the
statute: it goes beyond that, and asserts that, if the defendant did not have
the pistol when he went into the room, nor when he went out of it, his "merely
having the pistol in his pocket in the room, as stated, was not a carrying of
the pistol concealed about his person, within the meaning of the statute." The
charge as asked was specific, and referred directly to the evidence which showed
the manner in which the defendant carried the pistol, and conceded the truth of
that evidence. As the truth of the evidence was thus conceded by it, the
conclusion it drew from the evidence was a non sequitur; for, if the defendant
did have the pistol in his pocket, in the room, as stated by the evidence, he
might be guilty, although he neither had it when he entered the room, nor when
he left the room.