63 Ala. 38 | Ala. | 1879
According to section 4109 of the Code of 1876, “ any person who, not being threatened with, or having good reason to apprehend an attach, . . , carries concealed about his person a bowie-knife, or any other knife, or instrument of like kind or description, or a pistol, or firearms of any other kind or description, or an air-gun, must be fined, on conviction, not less than fifty, nor more than three hundred dollars, and may also be imprisoned,” &c.; and according to section 4809, “ the excuse, if any, must be proved by the defendant, to the satisfaction of the jury.”
Appellant was indicted, and found guilty of the offense of carrying a pistol concealed about his person, contrary to law. The locality of the act was near the State line between Alabama and Georgia; and it was proved in his defense, that some months before appellant had been taken from his house, with threats and violence, after midnight, by a number of armed men, some residing in Alabama, and others in Georgia, and none of them having any “ avocation or employment in the county,” and was carried by them, hand-cuffed, and without any warrant of arrest, out of the State, to a railroad station, and thence by railroad to some place in the State of Alabama; where, it is to be inferred from the evidence, he was set free, after some sort of a hearing, by a magistrate of this State. It was further admitted by the State’s attorney, as proved, that after appellant was so set free, his captors, whose names are set forth in the bill of exceptions, and who resided within a few miles of his residence, declared “ that they intended to take the defendant, and carry him off again, and that they would as soon shoot the defendant as to shoot a damned hognotice of which threats was communicated to-him. It was also in evidence, that they “ were prowling through the country, armed, and without any employment, sometimes for a while in Georgia,
The evidence excluded manifestly tended, if the jury should believe it true, to establish an excuse which the law allowed, for appellant’s carrying a pistol concealed about his person; to-wit, that he had “ good reason to apprehend an attack.” It was not objected that the fact of prowling and dodging about, without employment, was not sufficiently proved by legal testimony; but the evidence appears to have been ruled out on the ground, that the circumstances proved were not relevant. In this we think the circuit judge erred.
We do not pass upon the-question, whether there was error or not in the charges of the circuit judge to the jury, or in his refusals to charge as requested; because, in some respects, they were certainly not erroneous; and in those in which there may be error, it was not so specified as to call the attention of the judge and the adverse counsel to the particular matter in the charges or refusals to charge, which was supposed to be injurious to defendant.
Let the judgment be reversed, and the cause remanded.
