[ Back | Home ]
[Cite as Diffey v. State 86 Ala. 66, 5 So. 576
Diffey v. The State.
Indictment for Carrying Concealed
1. Constituents of offense.--A conviction may
be had for carrying a pistol concealed about the person (Code, § 3775), on proof
that the defendant carried the pistol in a hand-basket on his arm, and placed
the basket on a seat by his side while riding on a street car.
From the Criminal Court of
Tried before the Hon. Sam. E. Greene.
The defendant in this case was indicted for carrying a pistol
concealed about his person, and was convicted by the court, a trial by jury
having been waived. "On the trial," as the bill of exceptions states, "the
testimony offered by the State tended to show that the defendant, within twelve
months before the finding of the indictment, and in said county, carried a
pistol concealed in a hand-basket, which he carried in his hand, or on his arm,
from his residence, some three or four hundred yards, to Steele's Station on the
Bessemer Dummy Line, and placed the basket on a seat in the car. The testimony
offered by the defendant tended to show that, while the pistol was carried in
the basket, the basket was on a seat by his side in the dummy car; that the
pistol was not concealed from view, but was lying on the top of some towels in
the basket; that the defendant was a barber, and was at the time on his way to
his shop in the city of Birmingham." On this evidence, the court found the
defendant guilty, and he duly excepted to its ruling and judgment.
Thos. N. McClellan,
Attorney-General, for the State.
CLOPTON, J.--The evidence on which the defendant
was convicted of carrying a concealed weapon was, that he had a pistol concealed
in a hand-basket, which be carried in his hand, or on his arm, from his
residence to a station on the street railway, a distance of three or four
hundred yards, and when he entered the car, he put the basket on the seat beside
him. The language of the statute is, "carries concealed about his person." In
Cunningham v. (p.67)State,
76 Ala. 88 , where it
was held that a person did not commit the offense who had a pistol in his
saddle-bags, while riding on horseback along the public road, about the
person was defined to mean, "that it is so connected with the person, as
that the locomotion of the accused will carry the deadly weapon with him." The
purpose of the statute is to interdict carrying a weapon in a manner so
connected with the person, that it may be easily and promptly used, and yet
others not discover its presence. About the person does not mean
necessarily on the person. All the essential elements of the offense
exist, if an interdicted weapon is carried near the person, and so connected
therewith that the locomotion of the body necessarily carries the weapon, and so
that it may be promptly used when desired; as in the pocket of an overcoat
carried on the arm, or in a hand-basket, or other receptacle, held by the hand.
Such carrying one of the forbidden weapons concealed, comes within the letter
and purview of the statute, and constitutes the offense denounced. State v. McManus, 89 N.C. 555 .