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[Cite as Burst v. State, 89 Ind. 133
Burst v. The
Weapons.--Evidence.--Venue.--Evidence, in a prosecution for carrying a
concealed weapon, from which the jury may reasonably have inferred the venue as
laid in the indictment and also the fact of the weapon being carried concealed,
is sufficient, in respect to such proof, to sustain a verdict of conviction.
Same.--Traveller.--Statute Construed.--In such a
prosecution, the evidence showed that at the time of the alleged offence, and
before and since, the defendant resided in P. county, was extensively engaged in
the stave business, having stave yards in various places in that and an
adjoining county, that he travelled from his residence in a buggy to and from
these several places in attending to his said business, and was so engaged
three-fourths of his time. On the day of the alleged offence, while travelling
(p.134)in his business, he stopped 22 miles
distant from his home, at a picnic in P. county, and while there made a harmless
exhibition of a pistol to one person, and then replaced it in his pocket.
Held, that the defendant was a traveller
within the meaning of the statute (R. S. 1881, sec. 1985),
and the evidence insufficient to sustain a conviction.
From the Perry Circuit Court.
W. Henning and H. J. May, for appellant.
F. T. Hord, Attorney General, S. B. Hatfield,
Prosecuting Attorney, and W. B. Hord, for the State.
for carrying a concealed weapon. The indictment was based on section 1985, R. S. 1881, which provides that "Every person, not
being a traveller, who shall wear or carry any dirk, pistol, bowie knife,
dagger, sword-in-cane, or any other dangerous or deadly weapon concealed, or who
shall carry or wear any such weapon openly, with the intent or avowed purpose of
injuring his fellow man, shall, upon conviction thereof, be fined in any sum not
On arraignment and plea of not guilty, the appellant was tried by a
jury, resulting in a verdict of guilty, and, over his motion for a new trial and
exceptions, judgment was rendered upon the verdict. The motion for a new trial
questions the sufficiency of the evidence to sustain the verdict; and the
overruling of such motion is the only error assigned in this court. The evidence
is in the record. The appellant urges that it does not sustain the verdict, for
failure to prove the venue; also, that it does not show that he carried the
weapon concealed; and, further, that it appears from the evidence that he was a
The first and second objections to the sufficiency of the evidence
are not well taken. There is evidence from which the jury may reasonably have
inferred the venue as laid in the indictment, and, also, the fact of the pistol
being carried concealed.
As to the appellant being a traveller, the evidence, without
conflict, shows that at the time of the alleged offence, and before and since
that time, he resided at Cannelton or Tell City in Perry county, and was
extensively engaged in the stave business, (p.135)having stave yards at various places in that county and
in Spencer county; and that he travelled from his residence in a buggy to and
from these several places in attending to his said business, and was so engaged
three-fourths of the time. On the day of the alleged offence, and while
travelling in his said business, he stopped 22 miles distant from his residence,
at a picnic at Branchville, in Perry county, and while there made, so far as the
evidence discloses, a harmless exhibition of a pistol to one person, and then
replaced it in his pocket. For carrying the weapon at that time and place, he
was prosecuted and convicted.
We are of opinion that the appellant was a traveller, and not
amenable to the statute under which he was found guilty.
There has been much discussion as to what constitutes a traveller. In
Lockett v. State, 47 Ala. 42, under a statute
similar to ours in reference to carrying concealed weapons, it was held that a
person who was a passenger on a railway train for the distance of 28 miles,
seeking employment, was travelling.
The court in that case says: "The word 'travelling' has no very
precise or technical meaning when it is used without any limitation. Its primary
and general import is to pass from place to place, whether for pleasure,
instruction, business, or health. * * * * The length of the
journey or its continuance does not destroy the character of the
In Coker v. State, 63 Ala. 95, it was held that the
accused was improperly convicted for carrying a concealed weapon while
returning, and near his own residence, from a collecting trip which had taken
him some 40 miles from his home. For further reference to the authorities upon
this question, see reporter's note to Gholson v.
State [53 Ala. 519], 25
Am. R. 652.
The appellant's motion for a new trial should have been
The judgment is reversed, and cause remanded, with instructions to
the court below to sustain the motion for a new trial, and for further
proceedings in accordance with this opinion.