Mitchell v. State, 55 So. 354

55 So. 354 | Miss. | 1911

McLain, 0.

Appellant was inicted, tried, convicted, and sentenced in the circuit court of Covington county for carrying a pistol concealed. From this judgment, he appeals to this court.

In the trial court, the evidence shows that appellant carried a pistol concealed, and that it had no hammer or mainspring. Appellant contended that it was not a pistol within the meaning of the statute. The state, on the other hand, contended that it was. This was the chief issue on the trial. Upon the trial the defendant requested the court to instruct the jury that, if the pistol alleged to have been carried by defendant had no hammer or mainspring, then the same was not a pistol. This was refused by the court. The state requested of the court that if the defendant carried concealed, in whole or in part, a pistol which was defective, in that it did not have a mainspring or a hammer, the jury should find the defendant guilty as charged. This was given.

In the refusing of the one and the giving of the other the court was correct, and the ruling was clearly within the meaning and policy of our statute. Evidently to hold otherwise will go far towards nullifying the beneficent purpose of the law. In the condition in which this pistol was proved to be, by the holding of some authorities, it would not come within the purview and meaning of our staute. One of the leading cases holding this view is the case of Evins v. State, 46 Ala. 88. The weight of authority is clearly against this view, and we decline to follow it. Bishop on Statutory Crimes, section 791, says: “By what appears to be the better opinion, if it has no mainspring, or only a broken one, and if it cannot be discharged in the ordinary way, yet can be by a match, it is still a pistol within the statute, though the contrary was once held. ’ ’

In passing upon a statute similar to ours, the supreme court of Georgia in- a well-considered case said: “What is the meaning of ‘any pistol?’ This is the sole question. ‘Pistol’ is a word in general use by the whole population, and is consequently to be understood in its ordinary signification. An object, once a pistol, does not cease to be one by becoming temporarily inefficient. Its order and condition may vary from time to time, without changing its essential nature or character. Its machinery may be more or less perfect. At one time it may be loaded; at another, empty. It may be capped or uncapped; it may be easy to discharge or difficult to discharge, or not capable, for the time, of being discharged at all; still, while it retains the general characteristics and appearance of a pistol, it is a pistol, and so in common speech would it he denominated. The mainspring being disabled, so as to render a discharge of the weapon impossible in the ordinary mode .of using firearms, is no excuse or justification; concealment in carrying being interdicted by the statute, whether the machinery of the lock be sound or unsound.” Williams v. State of Georgia, 61 Ga. 418, 34 Am. Rep. 102.

We think the case should be affirmed. Affirmed.

Per Curiam.

The above opinion is adopted as the opinion of- the court, and for the reasons therein indicated the ease is affirmed.