[ Back | Home ]
[Cite as Redus v. State, 82 Ala. 53; 2 So. 713
Redus v. The State.
Indictment for Carrying Concealed
1. Constituents of offense; character of
weapon.--A conviction may be had for carrying a pistol concealed about the
person (Code,§ 4109), although the handle and the
mainspring were broken, and the weapon could not be discharged in the ordinary
way, though it might be discharged by striking the hammer with a knife, or other
2. Withdrawal of charges asked.--When charges
asked are submitted to the court without being read aloud, they can not be
withdrawn, on an intimation by the presiding judge that he should refuse them;
such action amounts to a refusal, and they should be marked as refused (Code, § 3109), in order that the jury may take them with the
other charges, given and refused, on their retirement.
From the Circuit Court of
Tried before the Hon. Leroy F. Box.
R. A. McClellan, and J. J. Turrentine, for appellant.
Thos. N. McClellan,
Attorney-General, for the State.
CLOPTON, J.--The indictment is found under section 4109
of the Code of 1876, and charges the defendant with carrying a pistol
concealed about his person. The weapon was a small cartridge pistol, the handle
and mainspring of which were broken; but, as the evidence tends to show, it
could be fired by holding it in one hand, and striking the hammer with a knife,
or other instrument. To constitute the statutory offense, it is not requisite
that the pistol concealed should be complete in all its parts, or capable of
direct and immediate use of offense or defense. Neither (p.54)completeness, impaired condition, nor efficiency, is a
proper subject of inquiry, unless it has lost so many of its parts as to be
harmless and worthless as a weapon--ceases to be a fire-arm. The condition of a
pistol may vary, without destroying its essential nature. An unloaded pistol, or
one difficult to discharge, or which can not be discharged in the ordinary way,
but can be by a match, or by striking the hammer, is a pistol within the meaning
of the statute. A broken handle and mainspring, and want of a tube, if the
pistol is capable of being otherwise fired, do not acquit the defendant of the
condemnation of the statute.
On the authority of Atwood v. State, 53 Ala. 508, and Hutchinson v. State, 62 Ala. 3, the pistol shown to
have been carried by the defendant concealed about his person, must be held to
be a pistol within the meaning of the statute. The court did not err in the
charges given, nor in the refusals to charge as requested.--Bish. on Stat.
Cr., § 791; Williams v. State, 61 Ga. 417.
The solicitor asked several charges in writing, which were laid on
the judge's stand without being read audibly. After inspecting them, and without
marking them "refused," the presiding judge remarked to the solicitor, that it
was his purpose to refuse the charges, if required to pass upon them, and that
he might withdraw them, or allow them to be marked "refused," and if so marked,
they would be carried out by the jury when they retired; and thereupon the
solicitor withdrew the charges, against the objection of defendant. Examination
of the charges, the determination to refuse them, and the announcement of that
determination, legally constituted a refusal. It thereupon became the duty of
the judge, under the statute, to write upon them "refused," and sign his name
thereto, so that they might become a part of the record, and the jury might take
them on their retirement.--Code of 1876, § 3109. The theory
of the statute is, that frequently it is important for the jury to understand
both what is, and what is not, the law of the case.--Beard v.
Ryan, 78 Ala. 37. A party has no right to withdraw charges requested,
after the judge has declared his determination to refuse them. To allow a party
to withdraw such refused charges would be to afford an opportunity to experiment
with the court, and to deny the adversary party the benefit of having the jury
take and consider them on their retirement, against the spirit and policy of the
Reversed and remanded.