McGuirk v. State

64 Miss. 209 | Miss. | 1886

ARNOLD, J.,

delivered the opinion of the court.

Carrying the weapon concealed, as charged, is admitted by appellant, but he seeks refuge from the consequences of the act in the exceptions contained in the statute in favor of those who are threatened with, or have'good and sufficient reason to apprehend, an attack, or who aré traveling or setting out on a journey. Neither defense attempted to be made by him is established, and no error assigned can avail him.

It is quite apparent that the weapon was carried by appellant, not as a precaution against an apprehended attack from either Sumack or Henry,but that it was being carried home from a place, not shown to be beyond the circle of his friends and acquaintances, where it had been previously left by him. Besides, the threat of Sumack, made about a year before the offense alleged was committed,is too remote to constitute the basis of justification, especially since appellant admits that shortly after the threat was made and communicated to him he learned that Sumack left the country, and that he had not seen or heard of him since. Under these circumstances, it cannot be said that appellant was threatened in such manner as to afford good and sufficient reason to apprehend an attack from this source. Tipler v. The State, 57 Miss. 685; Bish. on Stat. Crimes, § 7886.

The right reserved by the statute to carry concealed weapons is co-extensive only with the conditions prescribed by the statute, and when these conditions cease the right ceases also. Enslava v. The State, 49 Ala. 355. A mere threat does not license a person to carry concealed weapons, unless it is of such character and made under such circumstances as to produce reasonable ground to apprehend an attack from which one might lawfully defend himself by the use of such weapons.

Appellant was not “traveling or setting out on a journey” in the meaning of the statute. “The traveling or setting out on a journey,” intended by the statute to be an excuse for carrying concealed weapons, means a travel of such distance as to take one beyond the circle of his friends and acquaintances. Gholson v. The State, 53 Ala. 519; Bish. on Stat. Crimes, § 788a. This is about as definite rule as can be deduced from the language of the statute, unless it is to be nullified by construction. The right to carry concealed weapons, conceded by the statute to those “ traveling or setting out on a journey,”- commences with the journey and continues until it ends or until they reach home, but in this case, no matter how far appellant had been from home, he received the pistol in returning within ten or twelve miles of his residence, and parrying it home concealed, in this state of facts, was not within statutory exception. Coker v. The State, 63 Ala. 95.

If any error was committed in giving or refusing instructions, it was error without injury. -Upon the testimony, the verdict was as it should have been. Affirmed.