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[Cite as Ladd v. State, 92 Ala. 58, 9 So. 401
Ladd v. The State.
Indictment for Carrying Concealed
1. Signing bill of exceptions in vacation.--A
bill of exceptions may be signed in vacation, within the time fixed by an order
of court entered in term time (Code, §§ 2761-2, note); and
the time may be enlarged by one or more subsequent orders, each made before the
expiration of the time fixed by the former order, and not extending in all
beyond six months.
2. General objection to evidence.--A general
objection to evidence, not specifying any particular ground of objection, may be
overruled; and a specific objection, applicable only to a part of the evidence,
may also be overruled.
3. Continuity of offense; election.--The act
of carrying a pistol concealed about the person (Code, §
3775) being continuous in its nature, the fact that the prosecution has
proved that the defendant, when alighting from his buggy on meeting several
persons, having his pistol in his hand, took a gun away from one of them,
withdrew the cartridge from it, and then placed his pistol in a pocket where it
could not be seen; this does not constitute such an election as to time and
place as precludes the prosecution from showing that he had the pistol concealed
about his person before he got out of the buggy.
4. Constituents of offense.--A conviction can
not be had for carrying a pistol concealed about the person, on evidence showing
that he had it under a rug in the bottom of the buggy in which he was
From the Circuit Court of
Tried before the Hon. John B. Tally.
The appellant in this case, Vincent D. Ladd, was indicted, tried and
convicted for carrying a pistol concealed about his person. The testimony for
the State tended to show, that upon meeting David and Hugh Smith and James
Johnson in a certain lane in Jackson county, Hugh Smith at the time driving a
steer over to a neighbor's near by, the defendant, who was riding in a buggy
with one Samuel Brown, stopped them, and asked them where they were taking that
steer, which he claimed belonged to him; that the defendant got out of his
buggy, and, while holding his pistol in his hand, demanded of David Smith the
gun, which he was carrying on his shoulder; that upon the gun being handed to
him, he put his pistol in his pocket, where it could not be seen, unbreached the
gun, and extracted from it the cartridges, or shells. The concealment of the
pistol, by thus putting it in his pocket, constituted the carrying by the
defendant of a pistol concealed about his person, so far as shown by the
evidence found in the bill of exceptions. The defendant's evidence was in direct
conflict with (p.59)the State's evidence as
above stated, and tended to show that the defendant held the pistol in his hand
while he was unloading the gun, and all the rest of the time he was talking to
the said Smiths and Johnson. The defendant himself testified, that he carried
the pistol under a sheep-skin rug in the bottom of the buggy. Upon the
examination of the said Samuel Brown, and after he had testified that he came
with the defendant in his buggy from South Pittsburg, Tenn., he was asked by the
solicitor, "Where did the defendant carry his pistol as he came up from South
Pittsburg?" The defendant objected to this question, but did not assign any
special ground of objection. The court overruled his objection, and the
defendant duly excepted. In response to the said question, the witness answered,
that he did not know where the pistol was carried.
The defendant requested the following written charges, and separately
excepted to the court's refusal to give each of them: (1.) "If the jury believe
from the evidence that the defendant carried the pistol in his buggy, and not
concealed about his person, they should acquit the defendant." (2.) "If the jury
have a reasonable doubt as to whether the defendant carried the pistol in his
buggy, or as to whether he carried it concealed about his person, the defendant
is entitled to said doubt, and the jury should acquit the defendant."
R. W. Clopton, for the
appellant, cited Smith v. State, 52 Ala. 384; McPherson v. State, 54 Ala. 221; McCullough v. State, 63 Ala. 75; Cunningham v. State, 76 Ala. 88; Gibson v. State, 89 Ala. 122.
Wm. L. Martin, Attorney-General, for the
State, cited Etress v. State, 88 Ala. 191; Diffey v. State, 86 Ala. 66; Smith v. State, 79 Ala. 257; Farley v.
State, 72 Ala. 170; 3 Brick. Dig. 443, § 570;
Ib. 111, §§ 83-86; Ib. 112, §§ 109-110.
He also moved to strike out the bill of exceptions.
WALKER, J.--1. By an order made during the term at
which the judgment was rendered, the court fixed the time in which the bill of
exceptions should be signed after the adjournment. The judge in vacation allowed
several additional extensions of the time so fixed. Each allowance of further
time was made before the expiration of the time fixed by the next preceding
order, so that there was no lapse or period during which the bill of exceptions
could not have been signed under an existing order; and it was signed within the
time last allowed by the judge. The authority of the judge in this (p.60)regard was not exhausted by one extension of the
time fixed during the term. Prior to the passage of the statute now regulating
the subject, bills of exceptions were required to be signed during the term at
which the trial of proceedings was had, or, by written consent of the parties,
or their counsel, filed in the cause, at any time before the next succeeding
term of such court, and not afterwards.--Code of 1886, §
2761; and Rule 30, p. 810. The present statute provides
that, in no case, shall the time allowed by the order made during the term, or
by the judge in vacation, exceed six months,--Acts of 1886-7, p.
126; Code of 1886, note to § 2762. The legislature
recognized the fact, that it is often impracticable to prepare a bill of the
exceptions during the term of the court at which they were reserved; and the
purpose of the statute was to relieve parties, in this particular, of any
dependence upon their adversaries. The court, or the judge in vacation, may
allow the further time which formerly could have been secured only by the
consent of the parties or their counsel. The remedial operation of the statute
is not to be restricted by a narrow construction. A fair interpretation of its
language leads to the conclusion that, for good cause, the judge in vacation
may, by one or more orders to that effect, extend the time fixed during the
term, so long as the extension does not go beyond six months after the term. The
motion to strike out the bill of exceptions is overruled.
2. The defendant failed to specify any ground of objection to the
question propounded by the counsel for the State to the witness Brown. There was
no error in disregarding such a general and undefined objection.--Kansas City, M. & B. R. R. Co. v. Smith, 90 Ala. 25.
The objection now urged, that the question necessarily embraced the time when
the defendant was in Tennessee, bears upon only a part of the question and of
the answer thereto; and if this ground of objection had been specified, the
court could have limited the testimony to what occurred in Alabama. The
objection was too broad. The sustaining of it would have operated to exclude
competent as well as incompetent evidence.
3. There is nothing in the point now suggested, as a ground upon
which said objection should have been sustained, that the prosecution had
elected to rest the case against the defendant on the proof that he dropped the
pistol in his pocket after he alighted from the buggy, and was thereby cut off
from showing that before that time he had been carrying the pistol concealed
about his person. The offense charged is continuous in its nature, and the
inquiry could have been extended throughout the defendant's trip so long as he
was in the State (p.61)of Alabama. Etress v. The State, 88 Ala. 171; Smith
v. The State, 79 Ala. 257.
4. There was evidence tending to show that, while the defendant was
riding, the pistol was under a sheep-skin rug in the bottom of the buggy; that
when the defendant alighted, he took the pistol from that place, and kept it in
his hand, and that it was not concealed about his person at any time. If the
jury believed from the evidence that this was the correct version of the
transaction, the defendant should not have been convicted. He was entitled to an
acquittal, unless he carried a pistol concealed about his
person.--Code of 1886, § 3775. While it is not necessary to
a conviction that the pistol was carried on the person, yet it must
have been so connected therewith that the locomotion of the body carried with it
the weapon as concealed. When one's weapon is in a vehicle in which he is
riding, and not attached to his person at all, it can not be said to be
concealed about his person within the sense of the statute.--Cunningham v. The State, 76 Ala. 88. In Diffey v. The State, 86 Ala. 66, the proof was that
the pistol was concealed in a hand-basket, which the defendant carried in his
hand, or on his arm. There the concealed weapon accompanied the defendant in his
movements, the same as if it had been in his coat pocket. In this case, on the
above mentioned aspect of the evidence, the pistol was not so connected with the
person of the defendant as to go with him in his movements. When referred to
this aspect of the evidence, the first charge requested by the defendant was
correct, and the Circuit Court erred in refusing to give it. For this error, the
judgment must be reversed.
Reversed and remanded.