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[Cite as Cunningham v. State, 76 Ala. 88
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
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