Hardin v. StateHardin v. State
- Reporters:
- Before:
- Manning
According to section 4109 of the Code of 1876, “ any person who, nоt being threatened with, or having good reason to apprehend an attach, . . , carries concealed about his рerson a bowie-knife, or any other knife, or instrument of like kind or dеscription, or a pistol, or firearms of any other kind or desсription, 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.; аnd 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 loсality of the act was near the State line between Alabаma 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 rеsiding 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 Statе, to a railroad station, and thence by railroad to somе place in the State of Alabama; where, it is to be inferrеd 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 Statе’s attorney, as proved, that after appellant was sо set free, his captors, whose names are set forth in the bill оf 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 сommunicated 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, *40dodging in and out of the State of Alabama.” This latter evidence was, upon motion of the State’s attоrney, excluded from the jury, against the objection and exception of defendant.
The evidence excluded manifestly tеnded, if the jury should believe it true, to establish an excuse which the lаw allowed, for appellant’s carrying a pistol conсealed 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 nоt sufficiently proved by legal testimony; but the evidence apрears 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 еrror or not in the charges of the circuit judge to the jury, or in his refusаls to charge as requested; because, in some respеcts, they were certainly not erroneous; and in those in which thеre may be error, it was not so specified as to call thе 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.