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[Cite as State v. McManus, 89 N.C. (14 Ken.)
STATE v. N. J. McMANUS.
1. On trial of an indictment for carrying a
concealed weapon, the statute makes the possession prima facie evidence
of concealment, and the burden is on the defendant to rebut the presumption by
proof satisfactory to the jury.
2. The law presumes the criminal intent in such
case, and the defendant must likewise rebut this presumption.
3. The language of the statute is, not "concealed
on his person," but "concealed about his person," and hence,
if the weapon be within reach and control of the defendant, it is sufficient to
bring the case within the meaning of the statute.
Indictment for carrying a
concealed weapon tried at Spring Term, 1883, of Union,
before Shipp, J.
The defendant is charged with a violation of The Code, sec. 1005, in carrying a pistol
concealed about (p.556)his person while off his
One Morgan, the prosecuting witness, testified that in July, 1882, he
met defendant riding in a wagon on a public road about three miles from
defendant's premises, and in a conversation which took place between them, the
witness told the defendant that he was on his way to sow some oats on certain
land in defendant's possession; that defendant thereupon turned his wagon around
immediately, and the witness saw defendant draw a pistol from his hip-pocket;
that he also saw a basket the defendant had with him in the wagon, but could see
no pistol in it.
The defendant testified in his own behalf that, on the occasion
mentioned by the state's witness, he was on his way to work upon a house he was
erecting, about five miles distant, and was carrying his pistol to swap it for a
watch, according to an understanding had with one Sherman Flow, whom he met at
the place where he was building his house a few days before the occasion spoken
of by the prosecuting witness; that he put the pistol in his dinner basket on
top of the cloth which covered his dinner, and carried the basket on his lap;
that he had on no coat and there was no hip-pocket in his pants; that he put the
pistol in the basket because that was the most convenient place to carry it, and
without intent to conceal it or the fact that he had it, his sole object being
to trade the pistol with Flow, whom he expected to see that day; that when he
left home he had no idea of meeting the witness Morgan, and at no time did he
have the pistol in his pocket or concealed about his person; that when it was in
the basket it could be seen by any one.
Another witness testified that he saw the defendant, after Morgan had
passed him on the road, going towards his (defendant's premises, following
Morgan, and that the defendant had the pistol in his hand, and was then walking;
that he kept it openly in his hand until he overtook Morgan, which was upon
defendant's land; that Morgan sowed (p.557)the
oats upon the land of the defendant, despite efforts of the defendant, Morgan
having in his own hand a double-barrelled gun during the whole time he was
sowing the oats; that Morgan was indicted and convicted for forcible trespass
growing out of this matter, and this defendant (McManus) prosecuted him.
Both the prosecuting witness and defendant proved a good character by
a number of witnesses.
His Honor charged the jury that if the defendant was off his own
premises and had in his possession a pistol, the law made the fact prima
facie evidence of concealment, and the fact being found or admitted, the
burden of proof was shifted from the state to the defendant to show to the
satisfaction of the jury that there was in fact no concealment; and if the
defendant, being off his own premises, had the pistol concealed in his pocket or
in his dinner basket, and the basket was on his lap, he is guilty, provided he
had any criminal intent in so concealing it; and in passing upon the question of
intent, they could consider the fact the defendant showed a disposition to use
the pistol in the difficulty between Morgan and himself. The defendant excepted
to the charge of the judge.
Verdict of guilty; judgment; appeal by the defendant.
Attorney-General and Payne &
Vann, for the State.
Messrs. Covington & Adams, and Hinsdale &
Devereux, for defendant.
Merrimon, J. The defendant
has no ground of complaint against the charge of the court. It was as favorable
to him as the law would permit.
He was off his own land, on the highway, and had with him, in his
possession and about his person, a pistol. Under the statute, prima
facie, he had it concealed about his person, and the onus was on him
to show that he did not have it concealed.
The state offered testimony tending to prove that it was concealed
on his person. The defendant was examined on his own behalf, and his testimony
tended to prove (p.558)that he did not have it
so concealed, but carried it openly, where it might be easily seen by any
person, and for an innocent and proper purpose. The testimony was conflicting,
and it was the province of the jury to pass upon it and find the facts of the
matter. The court left the whole of it fairly to the jury, and they by their
verdict found that the defendant had and carried "concealed about his person" a
pistol, off his own premises, as charged in the indictment.
What the court said to the jury in respect to the intent with which
the defendant carried the pistol was favorable to him. The court might have told
them that if the defendant had the pistol off his premises and concealed about
his person, the law presumed the criminal intent, and it was for the
defendant to rebut this presumption by testimony sufficient to satisfy them of
his innocent purpose.
The defendant relied upon State v. Gilbert, 87
N.C., 527, in regard
to the question of intent. That case is not like this. There, the jury found the
fact in a special verdict that there was no criminal intent. Here, the jury find
there was the criminal intent, this question being fairly left to them upon the
The court told the jury that in passing upon the question of intent,
they might consider the evidence that the defendant showed a disposition to use
the pistol. This was relevant for this purpose, and it was left to the jury to
consider it with the other testimony, for what it was worth, in enabling them to
pass upon the animus. How a man uses or manifests a purpose to use a
deadly weapon is evidence of his purpose in having it concealed about his
person, more or less weighty, according to the circumstances of the case.
It is insisted that the pistol, if in the basket and concealed, was
not about the person of the defendant, though upon his lap. Such is not the
meaning of the statute. The language is not "concealed on his person,"
but "concealed about his person"; that is, concealed near, in close (p.559)proximity to him, and within his convenient
control and easy reach, so that he could promptly use it, if prompted to do so
by any violent motive. If the pistol was concealed in the basket, and that was
in the defendant's lap, on his arm, or fastened about his person, or if placed
near his person, though not touching it, this would be sufficient. It makes no
difference how it is concealed, so it is on or near to and within the reach and
control of the person charged.
The purpose of the statute is a wholesome one. It is to protect
individuals against sudden, unexpected, dangerous and perhaps deadly violence
inflicted with weapons that the assailant has concealed in some way, on, about,
or conveniently near to his person, and which he may use under sudden impulse,
or deliberately and unfairly against one taken unawares; and as well to conserve
the public peace and safety. It must receive such reasonable construction as
will effectuate this general purpose.
No error. Affirmed.