47 Ala. 42 | Ala. | 1872
Lead Opinion
This is- an indictment under the statute for carrying a pistol concealed about the person of the accused. There was a conviction in the court below, and the defendant was fined fifty dollars. From this conviction he appeals to this court.
The record shows that the jury was- “ duly empanneled and sworn according to law, well and truly to try the issue joined.” This could not be, unless the oath administered was that laid down in the Revised Code. It was therefore sufficient.
The defendant, in the court below, for his defense relies on the fact that he was “traveling” at the time when the offense charged is alleged to have been committed. The statute creating this offense is in the following words : “ Any person who, not being threatened with or having good reason to apprehend an attack, or traveling, or setting out on a journey, carries concealed about his person a bowie-knife3 or any other knife or instrument of a like kind or description, or a pistol, or fire-arms 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 in the county jail, or sentenced to hard labor for the county, for not more than sis months.” — Revised Code, § 3555; 1 Ala. 612; 31 Ala. 387; 33 Ala. 347. The testimony tends to show, that when the defendant was “traveling on the train and may have been a passenger,” on the rail-way between the city of Selma and the town of
On this evidence the defendant moved the court to give a written charge to the jury in the following language: “ That if they believe from the evidence that the defendant was engaged in traveling, and was on the cars as a passenger Rom Selma to Marion, a distance of twenty-eight miles, that then he had a right to carry concealed weapons, and that they must find the defendant not guilty.” This charge was refused, and defendant excepted. I think this was a proper charge under the evidence, and should have been given. The word “traveling” lias no very precise or technical meaning when it is used without any limitation. Its primary and general import is to pass from place to place, whether for pleasure, instruction, business, or health. A person may travel to seek employment as well as to seek amusement, information, or health. — Webster’s Dict. Unabridged, Roget’s Thesaurus of English Words, p. 109, word Travel. The length of the journey or its continuance does not destroy the character of the occupation. The proofs in this case do not make it certain that the defendant may not have, been engaged in an honest journey to a neighboring town to procure employment in his trade. He might have done the same thing, by a trip to California or to Mexico. In the latter case, to be caught' with pistols concealed about his person would be no crime. And there is no very clear reason why a different interpretation should be placed on his conduct in the two cases, because the journey was shorter in the one ca.se than it was in the other^ when his purpose in both cases was to seek employment in his occupation, Nor is it required that he should have any
There was also a charge given by the court below, which was the reverse of that set out above. This was objected to by the defendant. Such a charge cannot be maintained upon the reasoning above shown. It excluded all consideration of the evidence that the defendant was traveling when he exhibited his pistols. There was some evidence tending to show this, and however slight it might have been, it was entitled to its proper weight. But the charge of the court, which was given and excepted to, was calculated to exclude this. This was also error. The court reluctantly concur in the reversal of this cause, but think that the question of “traveling” should have been left to the jury.
The judgment of the court below is reversed, and the cause is remanded, and a new trial is ordered. In the mean time the defendant, said Reid Lockett, will be held to answer the indictment hr this case until discharged by due course of law.
Dissenting Opinion
(dissenting.) — The appellant was indicted for carrying concealed weapons under section 8555 of the Revised Code. He lived near Selma, and was going to Marion, a distance of about twenty-eight miles. Fourteen miles from Marion, or half way his journey, he was put off the ears by the conductor for improper and boisterous conduct, and at that time he exhibited pistols.
The court holds that his passage from Selma to Marion was such a traveling or going on a journey as relieved him from the penalty of the statute.
No more indefinite words could have been used in a penal statute than those of “ traveling ” or “ setting out on a journey.” But it is manifest that they were not employed in their most extensive signification. This would nullify the law, because any passing from one place to another, no matter how near, would be a traveling, and to prohibit the possession, or even the carrying of arms at home, would be contrary tp the constitution.
