Burnside v. State

62 So. 420 | Miss. | 1913

Bebd, J.,

delivered the opinion of the court.

Will Burnside was convicted for carrying a concealed weapon. The agreed statement of facts in the record, after showing that appellant found the pistol, offered in evidence and sent up with this appeal as Exhibit A, on the date- named in the indictment, and placed the same in Ms belt, sets forth the following: “That at the time the said pistol was so carried it could be neither loaded, unloaded, nor fired, but was filled with dirt, was rusty, and could not be made to open, to work, or to cock. That said pistol was in substantially the same condition at the time it was so carried as it is now. That the same was not loaded at the time, had never been loaded by defendant, and was thrown away by defendant on the same .day that it was found by him as stated above, and a few minutes after it was carried by defendant, and that later defendant’s father went and recovered said pistol, to be used in evidence in the circuit court, finding same in the place where defendant had cast it away and delivering said pistol to defendant’s attorneys, in whose hands it remained up to the time of the said trial in said circuit court. That defendant is sixteen years of age. That the said pistol, Exhibit A, was offered in evidence to the jury, was admitted and was considered by the jury in reaching their verdict. ’ ’

Is the object, Exhibit A, now before us, a pistol? It is shown that "it could not be loaded, unloaded, or fired; that it was rusty, could not be made to open, to work, to cock, and was filled with dirt. From the description in the record, and from an inspection of the object, we conclude that it cannot now he called a pistol. It may have been at one time a pistol. It is possible to take the material contained in the thing, and, with addition of other materials, construct therefrom a pistol; hut, because this is possible, we cannot see how it can he decided that the thing is now a pistol. It was decided in the case of Mitchell v. State, 99 Miss. 579, 55 South. 354, 34 L. R. A. (N. S.) 1174, that an object once a pistol does not cease to he one by becoming temporarily inefficient. ' In this case the object once a pistol is not temporarily inefficient, but it is permanently inefficient. Except the general outline appearance which indicates that it was once in use as a pistol, the object before us has none of the general characteristics of a pistol, and, in our opinion, has ceased to be such weapon.

The case is reversed, and defendant is discharged.