The defendant was indicted under section 4109,’ Code of 1876, for carrying concealed about his person a pistol. The defense was, that he was threatened with, or had good reason to apprehend an attack. If the jury believed the testimony of the three witnesses examined for the State, a prima facie case against the accused was shown. Defendant then proved that, in a letter written by one Sharp, to the chief of police, as we infer, and only a few days before the occurrence out of which this indictment grew, Sharp stated, that “ he did not wish to violate the law, or to be arrested for viоlating the law, but that he understood that defendant had made threats against him (Sharp), and that he was consequently carrying concealed about his person a pistol.” The witness, chief of police, testified that, immediately after he received said letter, he showed it to the accused, who read it, and remarked, “ that he would pull Sharp’s beard, or that he ought to pull his beard.” Another witness, to whom thе letter was shown (the letter had been destroyed, and was not produced), described its contents substantially as the first witness had done, and added, that he had heard defendant was carrying a pistol for Sharp. The difficulty, hereafter referred to, between the defendant and Sharp, appears to have had some connection with a State prosecution before a justice of the pеace, of a person called “Happy John,” prosecuted by Sharp, and defended by the defendant in this cause, as counsel. On a previous day, when said cause was called for trial, Shаrp moved for a continuance, when defendant remarked, Sharp “would swear to anything.” Sharp made no reply. It was also shown that, on the day preceding the rencontre, after mentioned, Shаrp and the defendant
The bill of exceptions recites that it contains all the evidence ; and the foregoing is all the testimony bearing on the question of excuse for carrying the pistol concealed about the person. There is not a word in it, or inference to be drawn from it, tending, in the remotest degree, to show that the defendant had been threatened with, or' had any reason to apprehend an attack. On the contrary, the letter of Sharp, the contents of which were known to the defendant, repelled all idea that he, Sharp, meditated an attack. That letter contained the only evidence offered that Sharp was carrying a pistol, and also stated the reason he gave for carrying it. The contents-of the letter were put in evidence by the defendant, for the purpose, we must suppose, of making good his excuse for carrying a pistol. Putting Sharp’s admission in evidence, he was bound to take it as it was made, and could not be allowed to reject a part of the statement, which he thought would operate against him. If any part went to the jury, all he said on the same subject, in the same conversation or letter, must be laid before them, to be weighed by them. The jury were not bound to believe all, but it could not be garbled in laying it before them. They “ must be taken altogether — that which makes for the party, as well as that which makes against him. The jury are not bound to give equal credence to every part.” — 1 Brick. Dig. 835, § 437. If the defendant desired to have thе jury instructed in the rules for weighing such admissions, this was a subject for a charge, not a ground for excluding any part of the evidence. Taken altogether, the letter, if considered as evidence of Sharp’s feelings and purposes, tended to show he was carrying the pistol for defense against an attack he apprehended from the defendant, and with no view of himself becoming an aggressor. The City Cоurt did not err in refusing to instruct the jury, “ that what Sharp had said in the letter, about any threats made by defendant, could not be considered by them as evidence.”
Although, as we have said, we fail to find in the record any evidence that defendant had been threatened with, or had good reason to apprehend an attack, still some testimony had been laid before the jury, which was obviously relied on as tending to show such excuse for carrying the pistol; and, as it can not be known what influence slight circumstances in evidence may exert on juries, the court did not err in receiving rebutting evidence. The conduct of thе parties, on each of the occasions when they were before the justice of the peace, and especially the circumstances immediately
If the witnesses in rebuttal are thought to have gone toо far in giving the particulars of the altercation and combat, then the objection should have been confined to that part of the evidence, which it is alleged was in excess of what the rule аllows. Manifestly the court below did not err in receiving evidence of the words and conduct of each party immediately preceding the assault, of the person by whom the first assault was made, and in what manner provoked and resented. All this tended to determine the question, whether the defendant apprehended an attack on him, or meditated an assault on Sharp. The objection and motiоn to exclude were directed against all testimony of this combat, and did not separate the legal .from the illegal, if any part was illegal. The court was not bound to separate the legal from the illegal portions of the evidence, but need only respond to the motion as made.. The court did not err in overruling this objection.
That the pistol was carried by the defendant concealеd about his person, appears to be one of the uncontroverted facts in this case. The defense, or exculpation, assumes two phases: first, that the accused was threatened with an attack; and, second, that he had good reason to apрrehend an attack. Either of these, if proved to the satisfaction of the jury, is sufficient, without invoking the other. The first is a fact, and, like any other fact, is susceptible of direct, positive proof. The threat, to amount to a defense, must be real, not simulated, or simply apparent. In the absence of an actual, real threat, it can not be affirmed that the accused has been threatеned with an attack. The other phase of the defense
We have had occasion heretofore to remark, that carrying concealed weapons is one of the most pernicious practices that modern civilization has developed. — See McManus v. The State,
We find no error in the record, and the judgment qf tbe City Court is affirmed,