81 Tenn. 225 | Tenn. | 1884
delivered the opinion of the court.
The defendant was indicted for carrying a pistol and convicted, and has appealed to this court. The bill of exceptions is as follows:' “And in the case of the State against Howard Parker for carrying concealed weapons, it was agreed by the .attorney-general and the counsel for defendant, that the testimony should be heard in both cases, while only the first case was on trial, and the two were tried together at the request of the defendant. That the proof showed that Howard Parker drew his pistol, that it was a small pistol and not an army or navy pistol. That this was in Shelby county — a few days before the indictment in this case was found. The above agreement is furnished as a bill of exceptions in the pistol case ■and the court accordingly signs it as such.”
There is nothing whatever in this record to show what other case is referred to, or what that other •case was j for, or what testimony there was in that
It is assumed, however, by counsel for the defendant, that the carrying a pistol for which the defendant ■is indicted, is the same as that disclosed in the case of the State against him for assault and battery with intent to commit murder, and for which he has been ■convicted, and in which case the judgment has just been affirmed. And upon this assumption it is insisted that the carrying the pistol with which the ••shooting in that case was done by the defendant, was part and parcel of that offense, and is merged in it, and hence the conviction in this ease was improper. If we assume, however, that the carrying a . pistol for which this conviction has been had was the same ■carrying that has been disclosed in ■ that case, then, as we have seen in the opinion just announced, the record in that case shows that he had the pistol when Holmes, the officer whom he shot, first found him at Wilcox’s house, that he carried it with him when he fled to the bushes where he concealed himself. Hence the offense of carrying it was complete before he did the shooting with it, for which he has been convicted in that case. And although he could not be convicted for a separate offense for having the pistol at the time he did the shooting, yet he might be properly convicted for the previous carrying before he was discovered and confronted by the officer whom he shot.
