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[Cite as Wilson v. State, 81 Miss. 404, 33 So.
WILSON v. STATE.
(Supreme Court of Mississippi. Jan. 5, 1903.)
1. Const. § 12, provides that
"the right of every citizen to keep and bear arms in defense of his home,
person, or property shall not be called in question, but the legislature may
forbid carrying concealed weapons." Defendant's evidence showed that the night
preceding the one on which he carried a pistol in his pocket in his own house
there was a disturbance of the chickens of his sister, who lived with him, and
he thought one or two chickens were stolen, and that one or two nights before
somebody broke in the window. Held too indefinite to constitute a defense
to the charge of carrying a concealed weapon.
2. Where, on the trial of defendant, charged with
carrying a concealed weapon, the only evidence to support a conviction was that
of a witness who distinctly said he saw defendant draw his pistol from his
pocket, an instruction that, "if there was a possibility that such witness was
mistaken, they should acquit the defendant," was properly refused.
Appeal from circuit court, Alcorn county; E. O.
"To be officially reported."
Jim Wilson was convicted of carrying a concealed weapon, and appeals.
Lamb & Kier, for appellant. Wm. Williams, Asst.
Atty. Gen., for the State.
TERRAL, J. The case discloses the fact that Jim
Wilson had carried a pistol in his pants pocket in his home or residence. He
attempted to justify his action under section 12 of the
constitution , which reads: "The right of every citizen to keep and bear
arms in defense of his home, person, or property * * * shall not be
called in question, but the legislature may regulate or forbid carrying
concealed weapons." He proved by his own evidence that on the night preceding
the one on which he had the pistol in his pocket at his own home there was a
disturbance of (p.172) the chickens of his
sister, who lived under the same roof, when he thinks one or two of the chickens
were taken. He further stated on one or two nights before that somebody broke in
the window. Upon this vague and uncertain evidence counsel insists that his
client is protected in carrying the pistol concealed by section 12 of the
constitution, above quoted. It is to be noted that the stealing of even one
chicken on the night before is uncertainly proved by the witness. The breaking
of the window is not shown to have had any connection with the disturbance of
the chickens, nor is there any evidence to characterize the breaking of the
window. Whether broken accidentally or purposely is not shown. It is, in our
view, too indefinite to constitute a defense of any sort. Certainly there is
nothing in the evidence that squints at a defense under the law on the subject
of carrying concealed weapons, which is unquestionably constitutional. The only
witness that said anything that would support a conviction of the defendant was
Bell, who distinctly said he saw defendant draw his pistol from his pocket; and
the fifth instruction requested for defendant, as shown by the record, was that,
"if there was a possibility that Bell was mistaken, they should acquit
defendant," and this was refused. Now counsel bases his argument upon the
supposition that the record reads "probability," instead of "possibility." It is
unnecessary, as we think, to decide what effect the use of the word
"probability" would have had upon the case if that word had been used in
instruction. Request 5 for defendant was rightfully refused. The law will not
base a right of action or defense upon mere possibilities, one or more.