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[Cite as State v. Dixon, 114 N.C. 850, 19 S.E.
STATE v. R. L. DIXON.
Carrying Concealed Weapons--Intent.
1. The offence of carrying a concealed weapon
consists in the guilty intent to carry the weapon concealed, and does not depend
upon the intent to use it; therefore,
2. Where, in the trial of one charged with carrying
concealed weapons, he testified that he carried it for the purpose of selling
it, the trial Judge properly instructed the jury, in effect, that there was no
evidence to go to the jury to rebut the presumption of guilt which the statute
raised from the possession, about his person and off his own premises, of a
concealed deadly weapon.
(State v. Harrison, 93 N.C.,
This was an indictment for
carrying a concealed weapon (a pistol), tried before Winston, J., at
November Term, 1893, of Rockingham Superior Court.
Witnesses for the State testified that they saw the defendant off his
own premises with a pistol concealed about his person; that this was at a
The defendant testified in his own behalf that one Cornelius Williams
gave him the pistol to sell, promising him that he might have all he sold it for
above a certain amount, and in this he was corroborated by Williams. He further
testified that he carried the pistol to the pond that day, it being a holiday,
and hearing there was to be a picnic, for the purpose of trying to sell it to
some one of the crowd; that this was his sole purpose in carrying it, and that
it was for no purpose offensive or defensive. He further testified that there
was no special person to whom he had any engagement to sell the pistol at the
pond; that he and others shot at a mark that day; that on one occasion before
this he had tried to sell it to a "hand" in a field; that he had never sold the
pistol, but since the time at the mill-pond had had it at home; that on his way
home from the mill-pond on the day above-mentioned he went by a neighbor's
house, having the pistol with him, after carrying it to the pond to sell, and
being on his way home, as above stated.
His Honor charged the jury that a man might rebut the presumption of
guilt arising in cases of this kind, after admitting that he had a pistol
concealed, by showing that he was carrying the pistol for a lawful present
purpose, but that if one could borrow or procure a pistol to sell and carry it
about with him from place to place during a period of several months, trying to
sell it, and selecting public days for the purpose as well, and shooting same
five times on a picnic occasion, the statute would be a dead letter; (p.852)that upon the whole evidence, if believed, the
defendant was guilty.
There was a verdict of guilty, and the defendant, having excepted,
appealed from the judgment pronounced.
The Attorney General, for the State.
Mr. A. J. Burton, for defendant.
Clark, J.: The defendant
carried the pistol concealed about his person off his own premises. The criminal
intent in such cases is the intent to carry the weapon concealed. The matter set
up in defence is not sufficient, and upon the defendant's own testimony he was
guilty. As there seems a misconception to some extent of the authorities it may
be well to review them:
In State v. Speller, 86 N.C., 697, the act
forbidding the carrying of concealed weapons was held constitutional; and it was
further held that the party would be guilty of violating the act though he
carried the weapon for self-protection in consequence of threats of
In State v. Woodfin, 87 N.C., 526, it was
held no defence to show that the concealed weapon was carried for the purpose of
In State v. Gilbert, 87 N.C., 527, it was
held that the presumption of guilty intent from the fact of the weapon being
concealed was rebutted by the express finding of the jury, in the special
verdict, that there was no guilty intent. There, a merchant had bought a pistol
in his trade and was carrying it from one store to another. "Thoughtlessly," as
the Court says, he put it in his pocket without intending to conceal it. The
guilty intent, it is there said, is "the purpose to carry it so it may not be
seen," and that purpose the jury found did not exist in that case. This decision
has been much misunderstood.(p.853)
In State v. Broadnax, 91 N.C., 543, it was
held that one was not guilty who was merely carrying to the owner a pistol for
which he had been sent, since the offence was the wearing or carrying of a
concealed weapon which the bearer might use on an emergency. This purports to be
based upon Gilbert's case, supra, but in fact was an extension of the
principle of that case carried to its extreme limit. It can only be sustained on
the ground that the party was not intending to carry a weapon at all, but was
simply conveying a piece of merchandise, as an express messenger might carry a
pistol or rifle in a box or case in the line of business.
In State v. Harrison, 93 N.C., 605, it was
held that if the defendant carried the weapon concealed on his person, but
testified that he did so for the purpose of trading it off, this was evidence to
rebut the intent, and should have been submitted to the jury. After the fullest
consideration, and with deference to the eminent Judge who delivered the
opinion, we cannot think so, nor do we concur in the reason given that it was
"on all-fours" with Gilbert's case. In Gilbert's case the jury found that there
was no criminal intent; i.e., no intent to carry the weapon concealed, it
being a sample pistol thoughtlessly put in the pocket of the overcoat by the
merchant purchaser and carried from one store to another to be packed up with
other purchases. In Harrison's case the defendant purposely and intentionally
carried the weapon concealed. There was full opportunity to use it if occasion
offered, and the defendant's act came within the spirit and letter of the
statute. There was no reason why the pistol could not have been carried openly,
as the defendant could have legally carried it. This would have given better
opportunities of negotiating a sale than the concealed carriage of it.
Having said this much, it is unnecessary to say more (p.854)than that his Honor correctly charged the jury in the
present case "that if one could borrow or procure a pistol to sell or convey it
about with him from place to place, during a period of several months, trying to
sell it and selecting public days for the purpose as well, and shooting some
five times on a picnic occasion, the statute would be a dead letter; that upon
the whole evidence, if believed, the defendant was guilty." This was in effect a
charge that there was no evidence sufficient to go to the jury to rebut the
presumption of guilt which the statute raises from the possession about his
person of a deadly weapon off one's own premises, State v.
McManus, 89 N.C., 555. The
carrying a concealed weapon cannot be excused because carried in self-defense or
for hunting. Of course, therefore, it cannot be excused if carried for the
purpose of peddling it off, with all the incidental opportunities of use. To so
hold would be a virtual and effective repeal of the statute. The presumption may
be rebutted by an express finding that there was no guilty intent, as where the
pistol was carried from one store to another to be packed up, without any
thought or intent to conceal it, or where, under some circumstances, it is
carried by a messenger to be delivered to the owner or purchaser. But matters of
excuse can be extended no further with safety and a due regard to the integrity
of the statute. As was said in McManus' case, supra, the statute "must
receive such reasonable construction as will effectuate its purpose."
State v. Harrison, supra, is overruled. In trials for
this offence it should be borne in mind that the guilty intent is the intent to
carry the weapon concealed, and does not depend upon the intent to use it. The
object of this statute is not to forbid the carrying of a deadly weapon for use,
but to prevent the opportunity and temptation to use it arising from its
concealment. If the weapon is carried for (p.855)lawful use, or even for unlawful use, the defendant
would not be guilty under this section if the weapon is carried openly, since
this statute applies not to the act of carrying the weapon or the purpose in
carrying it, but to the manner of carrying it. No Error.