State v. . Bradley, 186 S.E. 240

State v. . Bradley

186 S.E. 240 | N.C. | 1936

Criminal prosecutions, consolidated and tried upon identical warrants, each charging that the defendant therein named "did unlawfully and willfully have and carry concealed about his person a deadly weapon, to wit, a certain pistol, and did carry off his premises, unconcealed, a deadly weapon, to wit, a certain............," against the form of the statute in such cases made and provided, etc.

Verdict: "Guilty of C. C. W."

Judgments: Two years on the roads as to each of the defendants.

Defendants appeal, assigning errors. Do the warrants charge a crime? The question is properly presented by motions in arrest of judgment. S. v. Tarlton, 208 N.C. 734; S. v.McKnight, 196 N.C. 259, 145 S.E. 281; S. v. Grace, 196 N.C. 280,145 S.E. 399; S. v. Mitchem, 188 N.C. 608, 125 S.E. 190.

It is provided by C. S., 4410, that if anyone, "except when on his own premises," or "not being on his own lands," shall carry concealed about his person, any pistol, gun, or other deadly weapon, he shall be guilty of a misdemeanor." It was said in S. v. Perry, 120 N.C. 580, *291 26 S.E. 915, that the use of these exceptive phrases in the statute has the effect of restricting the legal right to carry concealed weapons to those who are in the privacy of their own premises. S. v. Terry,93 N.C. 585.

Being off the premises of the accused, or not being on his own lands, is an integral part of the offense condemned by the statute. S. v. Johnson,188 N.C. 591, 125 S.E. 183; S. v. Connor, 142 N.C. 700,55 S.E. 787. Even if this were considered an exception or proviso, not necessary to be negatived in the indictment (S. v. Smith, 157 N.C. 578,72 S.E. 853), still the present warrants would seem to be insufficient, for it is expressly alleged the defendant "did carry off his premises, unconcealed, a deadly weapon." This would seem to exclude the idea that the first allegation was also intended to mean while off his own premises. S. v. Vanderburg, 200 N.C. 713, 158 S.E. 248.

A motion in arrest of judgment, perforce predicated upon some fatal error or defect appearing on the face of the record, may be made at any time in any court having jurisdiction of the matter. S. v. Baxter,208 N.C. 90, 179 S.E. 450;S. v. McKnight, supra.

Judgments arrested.