56 S.W.2d 689 | Ky. Ct. App. | 1933
Certifying the law. *110
On October 9, 1932, the appellee Charlie Nunnelley was observed driving an automobile about the streets of Somerset in an intoxicated condition. The officers of the law becoming aware of this situation pursued him for the purpose of arresting him. When they came up upon him, they found him with his car parked by the side of the road. Nunnelley had gotten out of his car and was fooling with the engine. They arrested him, and, being of the opinion that perhaps he had intoxicating liquors in his car, they proceeded to search it. Underneath the front seat of the car they found a loaded revolver. Nunnelley was later indicted for the offense denounced by section 1309 of the Statutes, which, so far as pertinent, reads, "If any person shall carry concealed a deadly weapon upon or about his person," he shall be punished as that section prescribes. On his trial, the facts disclosed being as above outlined, the court at the close of the commonwealth's case on motion of the appellee peremptorily instructed the jury to find him not guilty, which it did. The commonwealth has appealed for the purpose of having the law certified.
Whether or not under a statute reading like the quoted portion of ours one may be convicted under facts similar to those detailed above is much disputed; the authorities being in great conflict, as may be seen from reading the note in 50 A.L.R. 1534. See, also, the note in 23 L.R.A. (N.S.) 173. In the case of Commonwealth v. Sturgeon, 37 S.W. 680, 18 Ky. Law Rep. 613, the facts were that a loaded pistol was found concealed in a satchel in a wagon in which several persons were riding. The evidence not showing to whom the pistol belonged, we held that the court should have instructed the jury to find the person charged with carrying such pistol not guilty. In the case of Avery v. Commonwealth,
"To 'carry' the weapon means that it must be on the person or so connected or annexed to the person that the weapon is carried along as the person moves."
The court observed that the Louisiana court in the case of State of Louisiana v. Brunson,