187 N.C. 477
N.C.
1924
Clarkson, J.

We think that it was a case that should be submitted to the jury upon the question of the concealment, not the purpose of the concealment, but actual concealment. It was not such a direct contradiction of guilt as appeared in State v. Roten, 86 N. C., 701, cited by defendant in his brief. There the defendant carried the pistol about his person openly, to the view of everybody. Manifestly no person could be convicted of carrying a weapon concealed when that weapon was not concealed. S. v. Dixon, 114 N. C., 850; S. v. Lilly, 116 N. C., 1049; S. v. Reams, 121 N. C., 556; S. v. Brown, 125 N. C., 704; S. v. Woodlief, 172 N. C., 887.

Walker, J., in the Woodlief case, supra, p. 887, on the question of concealment, has so recently and well said, that we repeat: “It is no defense to a charge of unlawfully carrying a concealed weapon that it was done for the purpose of self-defense. S. v. Speller, 86 N. C., 697; S. v. Woodfin, 87 N. C., 526; S. v. Broadnax, 91 N. C., 543. The guilt appears legally from the. intent to carry the weapon concealed. S. v. Dixon, 114 N. C., 850; S. v. Pigford, 117 N. C., 748; S. v. Brown, 125 N. C., 704. The above cases show that one of the mischiefs intended to be remedied is the practice of carrying concealed weapons, to be used on an emergency. Justice Ashe said, in S. v. Broadnax, supra: ‘The mischief intended to be remedied by the statute was the practice of wearing offensive weapons concealed about the person, or carrying them so concealed with a purpose to be used offensively or defensively upon an emergency.’ And Justice Ruffin said, in S. v. Speller, 86 N. C., 697: ‘The right to wear secret weapons is no more essential in the protection of one man than another, and surely it cannot be supposed that the law intends that an unwary advantage should be taken even of an enemy. Hence it takes no note whether the secret carrying be done in a spirit of foolish recklessness or from a sense of apprehended danger, but in either case declares it to be- unlawful. Indeed, were there any difference made, we might expect it to be against one who felt himself to be under some pressure of necessity, since in his case the mischievous consequences intended to be avoided might the more reasonably be antici *480 pated. And it would be a strange passage in the history of legislation to enact that it shall be unlawful for any person to carry concealed weapons about his person, except when it may be supposed he shall have occasion to use them.’ ”

The Constitution of North Carolina, Art. I, sec. 14, says: “Excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”

In the Woodlief case, supra, p. 888, on the question of “cruel or unusual punishment,” Walicer, J., said: “We may assume, for the sake of discussion, the jurisdiction of this Court to review a judgment below, upon the ground that the particular punishment imposed by the court is ‘cruel and unusual,’ where the law gives to the judge a discretion to fix the punishment, as it does in respect to this crime. Revisal, sec. 3708; S. v. Manuel, 20 N. C., bottom page 122 (4 Dev. & Bat., 20); S. v. Driver, 78 N. C., 423. In the Driver case the Court held that ‘there is a limit to the power of the judge to punish, even when it is expressly left to his discretion. What the precise limit is cannot be prescribed. It ought to be left to the judge who inflicts it, under the circumstances of each case, and it ought not to be abused.’ The. Court adds that it ought not to be interfered with, ‘except where the abuse is palpable.’ ”

The Legislature, 'in its wisdom, has passed the statute against carrying concealed weapons. Its purpose was for peace and the preservation of human life and limb. Carrying weapons concealed has proven a menace, and the Legislature has seen fit to pass the following act (C. S., 4410):

“If any person, except when on his own premises, shall carry concealed about his person any bowie-knife, dirk, dagger, slungshot, loaded cane, brass, iron or metallic knuckles, or razor, or other deadly weapon of like kind, he shall be guilty of a misdemeanor, and shall be fined or • imprisoned at the discretion of the court. If any one, except on his own premises, shall carry concealed about his person any pistol or gun, he shall be guilty of a misdemeanor and shall be fined not less than $50 nor more than $200, or imprisoned not less than thirty days nor more than two years, at the discretion of the court. Upon conviction or submission, the deadly weapon, with reference to which the defendant shall have been convicted, shall be condemned and ordered confiscated and destroyed by the judge presiding at the trial. If any one, not being on his own lands, shall have about his person any such deadly weapon, such possession shall be prima facie evidence of the concealment thereof. This section shall not apply to the following persons: Officers and soldiers of the United States Army, civil officers of the United States while in the discharge of their official duties, officers and soldiers of the militia *481 and the State Guard when called into actual service, officers of the State or of any county, city or town charged with the execution of the laws of the State, when acting in the discharge of their official duties.”

The statute prescribes the punishment, “or imprisoned not less than thirty days nor more than two years, at the discretion of the court.” The court below fixed the imprisonment four months. This the court had a right to do, under the plain language of the act. We can find

No error.