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[Cite as Day v. State, 37 Tenn. (5 Sneed) 495 (1857).]

RICHARD DAY v. THE STATE.

Knoxville, September, 1857.

Criminal Law--Drawing Bowie-Knife--Self-Defence--Act of 1838, ch. 137, sec. 3. The purpose of the act of 1838, ch. 137, forbidding the sale and use of bowie-knives in this state, was to prevent the use of that instrument, as a hostile weapon, altogether; and it is the imperative duty of the courts to see that all parts of said act are rigidly enforced. A person indicted under the third section of said act (Code 4748), for drawing a bowie-knife from a place of concealment about his person, to cut, to awe, or intimidate another, cannot defend himself upon the plea that such act was done in self-defence. The law makes no exceptions, and the courts must enforce it as it is.(p.496)

This was an indictment and conviction from the circuit court of Hamilton county, against the defendant, for maliciously drawing a bowie-knife, from a place of concealment about his person, with intent to awe and intimidate one Sterling T. Bacon. Another count in the indictment charges, that the weapon was drawn with intent to cut and stab said Sterling T. Bacon. It seems that during an altercation between the defendant and Bacon, at the house of the latter, the defendant was ordered by Bacon to leave the house, which he did, Bacon following him to the door, with a large bottle in his hand. While Bacon was standing upon the door-step, the defendant approached him and, laying his left hand upon Bacon's shoulder, told him not to rush upon him, at the same time drawing a large knife from beneath (p.497)his vest, which he held in his right hand behind him, but made no effort to use. At the July term, 1858, before Judge Gaut, the case was submitted to a jury of Hamilton county, upon defendant's plea of not guilty. The court charged the jury as follows: "If the defendant maliciously drew from a place of concealment about his person, a bowie-knife, or a large, dangerous knife, resembling a bowie-knife, for the purpose of cutting, sticking or stabbing Sterling T. Bacon, as charged in the first count, or for the purpose of awing or intimidating Bacon, as charged in the second count, and if he so drew it, in this county, and before the finding of this indictment, then he is guilty, and you ought so to pronounce.

* * * If the defendant did not draw the knife from a place of concealment about his person, he is not guilty. If the defendant did not maliciously draw the knife, for the purpose of cutting, sticking or stabbing Bacon, or for the purpose of awing and intimidating Bacon, he is not guilty. If it was a large, dangerous knife, resembling a bowie-knife, or if it was a bowie-knife, and the defendant did draw it from a place of concealment about his person, still, if he did not draw it maliciously, prompted by malice and bad feelings towards Bacon, he is not guilty. If he drew it in fun, or in jest, in good humor, he is not guilty of the offence charged in this indictment, and he ought to be acquitted; although it was unlawful for the defendant to wear such a knife under his clothes, or concealed about his person, it is not a penitentiary offence. But if it was a bowie-knife, or a large, dangerous knife, resembling a bowie-knife, (p.498)and if the defendant had malice towards Bacon, if he had grudges and ill-feelings towards Bacon, and drew the knife from a place of concealment about his person, prompted by his malice and ill-feelings towards Bacon, for the purpose of sticking, cutting, awing, or intimidating Bacon, then he is guilty. If the defendant had the malice towards Bacon, and drew the knife from the place, and in the manner before stated, to awe and intimidate Bacon, to hold him off, to awe him from approaching and attacking him, defendant is guilty; a bowie-knife, or a large, dangerous knife, resembling a bowie-knife, is not such a weapon as that a person can maliciously draw from a place of concealment about his person to awe, or intimidate another. He cannot lawfully draw such a weapon, in the manner before stated, with malice, to awe and intimidate a man from an attack upon him. If the proof does not satisfy you that the defendant drew the knife maliciously; if you have a rational, well-founded doubt as to whether the defendant had malice towards Bacon, or whether he drew it for the purpose of sticking, cutting, awing or intimidating Bacon; or whether it was a large, dangerous knife, resembling a bowie-knife, or a bowie-knife, that doubt should weigh in favor of the defendant, and you should acquit him." The defendant was found guilty, and sentenced to the penitentiary for three years, from which he appealed in error.

Burch & Mitchell, for the prisoner; J. B. Heiskell and W. B. Reese, Jr., for the State.(p.499)

Caruthers, J., delivered the opinion of the court.

The plaintiff in error was indicted for drawing a knife, resembling a bowie-knife, upon one S. T. Bacon. The first count charges that he drew it "from a place of concealment about his person * * * with intent to cut, stick, and stab one Sterling T. Bacon;" and the second count charges that he "unlawfully, feloniously, wilfully, and maliciously did draw from a place of concealment about his person, a certain large knife, resembling a bowie-knife, for the purpose then and there of awing and intimidating one Sterling T. Bacon," etc.

The case falls under the act of 1838, ch. 137, sec. 3. The first section of this act makes it a high misdemeanor, punishable by fine and imprisonment, for any one to sell, offer to sell, or give away, or bring into this state for that purpose, these deadly instruments. The second section forbids, under the same penalty, the keeping of said instruments under the clothes, or concealed about the person. The punishment, under these sections, upon conviction, is to be a fine of not less than $100, nor more than $5 and imprisonment from one to six months, under the first; and not less than $200, nor more than $5 with imprisonment from three to six months, under the second. It is a matter of surprise that these sections of this act, so severe in their penalties, are so generally disregarded in our cities and towns. The safety of the citizen requires that this law should be rigidly enforced.

But the 3d section creates a felony, and is the one which applies to this case. It provides, "that if any person shall maliciously draw, or attempt to draw, any (p.500)bowie-knife, Arkansas tooth-pick, or any knife or weapon that shall in form, shape, or size resemble a bowie or Arkansas tooth-pick, from under his clothes, or any place of concealment about his person, for the purpose of sticking, cutting, awing, or intimidating any other person, such person so drawing or attempting to draw, shall be guilty of felony." The punishment is from three to five years in the penitentiary. And by the fourth section, it is made a felony, punishable by confinement from three to fifteen years, for cutting or stabbing with any such weapon, in a sudden rencounter, whether death ensues or not.

So, it will be seen, that the Legislature intended to abolish these most dangerous weapons entirely from use, as unfit to be worn and used in a christian and civilized community for any purpose, so far as severe penalties could accomplish that object. They were induced to do this on account of the savage character of the instrument and for the saving of blood.

The possession and drawing of a bowie-knife in this case, is not denied; but the defence is, that it was drawn for self-preservation, and therefore, not maliciously, as required by the act, to constitute the offence. On this point, the court charged the jury "that if you believe the defendant had malice towards Bacon, and drew the knife from the place, and in the manner before stated, to awe, and intimidate Bacon, to hold him off, to awe him from approaching and attacking him, he is guilty."

Various other minor objections are urged, but this is the main ground relied upon for a reversal.

The argument is, that this construction of the act (p.501)deprives the defendant of the natural right of self-defence, and such could not have been the meaning of the Legislature. The act is certainly a very strong one; but it was properly intended to be so, in view of the great evil against which it was aimed. Daily experience shows that it has not yet proved itself sufficient for the object intended.

We can come to no other conclusion in view of all the provisions of this statute, but that it was the fixed purpose of the Legislature to prohibit the use of this particular weapon for any purpose; it is not to be sold, given away, kept about the person, used or attempted to be drawn or used, not even upon a "sudden rencounter." The right of self-defence is not denied, but this particular instrument is prohibited in the exercise of that right, if it be "drawn from any place of concealment about the person." If the knife be thus drawn with malice, for the purpose of "awing or intimidating any person," the offence is complete. That is the language and spirit of the act, as we think, and the charge does not go beyond it. If men wish to escape these severe consequences, let them discontinue the use of these most dangerous and bloody weapons. The Legislature has proscribed them, and men must disobey at their peril. This construction is inevitable, upon both the letter and spirit of the act, and if it invades the right of self-defence, the fault is not ours. The Legislature thought the evil great, and, to effectually remove it, made the remedy strong. We approve their policy and maintain the act in all its vigor.

The other objections taken in this case, prompted by an unexceptionable zeal in defence, have been considered, (p.502)but need not be noticed in this opinion, as we do not regard them as sufficient to authorize a reversal.

We regret the fate of the defendant, but the law must be enforced against offenders for the general good.

Let the judgment be affirmed.