130 Tenn. 163 | Tenn. | 1914
delivered tlie opinion of tlie Court.
The indictment in this case charges that Boh Hea-ton “unlawfully did carry a pistol, against the peace and dignity of the State. ’ ’ Heaton pleaded not guilty, and was tried and found guilty by a jury, whereupon the trial judge imposed upon him 'a fine of $50 and
In this court plaintiff in error insists that upon the uncontroverted facts he is not guilty of carrying arms within the sense of the statute, or, in other words, that the evidence preponderates against the verdict of the jury.
The case was 'tried upon an agreed statement of facts, which is as follows:
“The defendant, R. T. Heaton, is a lumber man, engaged in business in G-reene county, Tennessee, having a lumber manufacturing plant and various men in his employ. The defendant owned no pistol and had no weapon of his own. Oh the morning of the difficulty, a hoy, who was in his employ, came into his office intoxicated, with a pistol in his possession, and Hea-ton, fearing that the hoy might get into trouble, took the pistol and dropped it in a laundry bag hanging on the side wall of his office, intending to leave it there until the hoy sobered up and then turn it over to him. On the evening of that day a difficulty occurred between Eb. Cutshall and the defendant. Cutshall had a contract for logging for Heaton and had quit work, stopping Heaton’s mill and stopping his other hands from work. Cutshall came into Heaton’s office where some of the other hands were, such other hands having come there for the purpose of asking Heaton whether they
“After the second shot, some of the bystanders took the pistol away from Heaton, and thereupon the brother of Eb. Cutshall forced his way into the office with an open knife, and attempted to assault Hea-ton with it, but was prevented by some of those present.
“All the Cutshalls were proven to be fighting characters and dangerous men. Heaton did not conceal the pistol or have it other than open in his hand; but it was not an army or navy pistol, being a cheap 32 caliber revolver. The circumstances of the affray happened as rapidly as possible, and Heaton had the pistol no longer than it was possible for him to get it out and turn to the door and fire the shots.
“Cutshall indicted Heaton for alleged felonious assault, which was tried before the pistol case, and the jury held that the shooting was in self-defense, and that defendant, Heaton, was not guilty of any offense under the indictment for felonious assault.
“Heaton’s office was also his sleeping apartment, and it was one room of a boarding house belonging to Heaton, where certain parties engaged about the mill boarded, but none of the Cutshalls boarded there. Said office was about twelve by eighteen feet. This occurred in Greene county and within twelve months before the finding of the indictment.”
The question for determination is whether, upon the facts, the plaintiff in error is guilty of unlawfully carrying a pistol within the meaning of our statute (Shannon’s Code 6641), which is as follows:
‘‘ It shall not be lawful for any person to carry, publicly or privately, any dirk, razor concealed about his person, sword cane, loaded cane, slung shot, or brass knucks, Spanish stiletto, belt or pocket pistol, revolver, or any kind of pistol, except the army or navy 'pistol, usually used in warfare, which shall be carried openly in the hand. ’ ’
This court has heretofore held that the object of the statute above quoted is “to prevént carrying a pistol with a view of'being armed and ready for offense or defense in case of conflict with a citizen.’’’ Moorefield v. State, 5 Lea, 348.
It is not necessary to a conviction under this statute that the weapon carried be concealed about the
The statute makes no exception in favor of the right of carrying pistols upon one’s own farm or premises, or in fact in any place. The prohibition is against carrying “publicly or privately.” The precise question for solution in this case is, Did the plaintiff in error “carry” the pistol, within the meaning and intent of the statute 1 In the case of Page v. State, 3 Heisk., 198-201, note, this court, speaking with reference to the statute here under consideration, said, viz.:
“But we are far from understanding the legislature as intending to make every act of carrying one of these weapons criminal. Under the constitution, every man has a right to own and keep these weapons, nor is this right interfered with by the prohibition against ‘carrying’ them, in the sense in which the legislature uses the word. To constitute the carrying criminal, the intent with which it is carried must be that of going armed, or being armed, or wearing it for the purposes of being armed. In the case before us, the intent with which Page was carrying his pistol was fully developed. He was carrying it that he might be armed, as was shown by his threatened assault upon the prosecutor. It would probably be difficult to enumerate all the instances in which one of these weapons could be car
A pistol is property, notwithstanding the statute (Shannon’s Code, 6650) making it a misdemeanor for any person to sell, or offer- to sell, or bring into the State for the purpose of selling, giving away, or other-dise disposing of, pistols of any kind other than army or navy pistols. Our statutes do not prohibit one from owning a pistol.
“The owner of a pistol, while he cannot carry or sell it in Tennessee, may keep it in his residence or place of business for his protection.” Osborne v. State, 115 Tenn., 718, 92 S. W., 853, 5 Ann. Cas., 797.
If the plaintiff iii error had the right to own a pistol, and to keep it in his residence or place of business “for his protection,” as held by this court in Osborne v. State, supra, then it must be true that he could lawfully use it, in his residence or place of business, for his protection against a violent and deadly assault by a lawless intruder. To hold otherwise would be to say that he had a legal right which the law did not permit him to exercise; and this would be to announce a legal absurdity.
"We do not wish to be understood as holding that plaintiff in error is to be excused merely because he used the pistol in self-defense. Such is not the law. Coffee v. State, supra. Nor do we mean to hold tha1 one might not be guilty of carrying a pistol in his own
An assignment of error is based upon the proposition that there was a “merger” of the offense of carrying a pistol into the alleged felonious assault for which plaintiff in error was tried, and of which he was acquitted, and that, for that reason, he could not be convicted in the present case; and, in support of this assignment, counsel rely upon the case of State v. Parker, 13 Lea, 225.
Parker’s Case was an appeal from a conviction for carrying a pistol. It appeared that he had shot an officer who was. pursuing him, and had been indicted for a felonious assault upon the officer. It was insisted by Parker’s counsel that the carrying of the pistol was part and parcel of the felonious assault, and was merged in it, and that Parker, therefore, could not be convicted of carrying a pistol unlawfully. This court found that in that case that Parker had the pistol when the officer whom he shot found him at the house of one Wilcox, and that he carried the pistol with him when he fled to the bushes where he concealed himself and where he shot the officer, who pursued him from Wilcox’s house. Hence the court held the- offense of carrying the pistol was complete before he did the shooting
The doctrine of merger, at the common law, is stated in Wharton’s Criminal Law (11th Ed.), vol. 1, sec. 39, as follows:
“Merger is said to exist when a lesser offense is absorbed in a greater, but in criminal practice the only case in which such absorption is claimed to be operative is when a misdemeanor is an ingredient .of a felony, in which case the older authorities maintain that the trial must be exclusively for the felony, and that the defendant cannot, under an indictment for felony, be convicted of misdemeanor. ’ ’
The doctrine of merger, in relation to criminal offenses, as it existed at the common law, is practically abolished, or at least greatly limited, in our practice. At the common law there was no merger except where the lesser offense was an ingredient of the greater. It' is provided by Shannon’s Code, sec. 7195, that:
“Upon an indictment for any offense consisting of different degrees, the jury may find the defendant not.
But it has been held in other States that the unlawful carrying of a pistol is not a part and parcel, in other words, not an “ingredient” of a felonious assault, or felonious shooting, hut is an offense of a different nature, and not one merely differing in degree. See note collating cases, 31 L. R. A. (N. S.), page 732.
However, the decision off this latter question is not necessary in the present case, and we do not decide it, because the finding that plaintiff in error was not guilty, upon the facts, of carrying a pistol unlawfully is determinative of the case.
It results that the judgment of the court below must be reversed, and the verdict set aside, and we recommend that the attorney-general enter a nolle- prosequi.