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[Cite as Cunningham v. State, 76 Ala. 88 (1884).]

CUNNINGHAM v. THE STATE.

INDICTMENT FOR CARRYING CONCEALED WEAPONS.

1. Carrying concealed weapons; constituents of offense.--Under the statute against carrying deadly weapons "concealed about the person" (Code, 4109; Sess. Acts 1880-81, p. 38), a conviction can not be had on proof that the defendant, while riding on horseback along a public road, had a pistol in his saddle-bags.

From the Circuit Court of Shelby.

Tried before the Hon. S. H. Sprott.

No counsel appeared in this court for the appellant, as far as the record and the dockets show.

T. N. McClellan, Attorney-General, for the State.

STONE, C. J.--The statute provides, that "any person who carries concealed about his person ... a pistol," &c., "must be fined on conviction," &c.--Code of 1876, 4109, as amended by act approved February 19th, 1881.--Sess. Acts, 38. The present case requires us to construe the phrase, "concealed about his person." The testimony on which the conviction was had, showed that, "in the year 1882, the defendant was riding on one of the roads in said county, on horseback, and that he carried on the horse a pair of saddle-bags, and that in the saddle-bags he carried a pistol." The court, at the written request of the solicitor, charged the jury, if they believed the evidence, they must find the defendant guilty. In this the Circuit Court erred. "About the person," must mean, that it is so connected with the person, as that the locomotion of the accused will carry the deadly weapon with him. This is the plain import of the words, in common parlance. The pernicious practice the legislature intended to interdict, was the facility it furnishes for prompt use of a deadly weapon, so concealed as to give no notice of its presence, and yet so accessible as to afford immediate use, when wanted. Possibly, the conduct proved was reprehensible; but it does not fall within the language of the statute, as its words are generally understood.--Owen v. State, 31 Ala. 387.

Reversed, but not remanded. Let the accused go hence without day.