Thomas v. State, 64 So. 192

Thomas v. State

64 So. 192 | Ala. Ct. App. | 1913

PELHAM, J. —

The defendant’s plea of misnomer not only did not negative the fact that the defendant was known and called by the name Arthur Thomas, which was the name employed in the indictment to designate the defendant, but in effect admitted that the defendant was known and called by that name. Demurrers to this plea were properly sustained. — Freeman v. Pullen, 119 Ala. 235, 24 South. 57; Wren v. State, 70 Ala. 1; Ruffin v. State, 124 Ala. 91, 27 South. 307; Robinson v. State, 8 Ala. App. 435, 62 South. 372.

The case was tried before the court without a jury, and it is insisted that the evidence was not sufficient *69to support the finding of guilty. The defendant was charged with carrying a concealed weapon. One of the witnesses, a policeman of the city of Birmingham, who arrested the defendant, testified that the defendant “put the pistol in his pocket, and I ran my hand in his hip pocket and got it; it was not visible.” The testimony of the officer that the pistol was in the defendant’s hip pocket, and not visible when so placed, urns sufficient, if believed (and that was a matter for the court, sitting as judge and jury), upon which to predicate a finding that the pistol was hidden from ordinary observation. It was open to the defendant to cross-examine this witness, and further develop the facts as to the nature and extent of the concealment of the pistol while in the hip pocket of the defendant, as testified to by the witness, if there was any question as to the pistol’s being concealed from ordinary observation at the time; and, in the absence of any attempt to bring- out facts of that nature, the testimony of the witness that the pistol was not visible when he reached his hand into the defendant’s pocket, and drew it out, is amply sufficient, we think, to show that it was concealed from ordinary observation.

It was proven on the trial without conflict in the evidence that, from the time the defendant placed the pistol in his pocket until it was taken out by the arresting officer, the defendant had not walked even so much as a step, but had been standing- still, and it is argued that the undisputed proof shows that the pistol was not carried on the person as prohibited by law and as charged in the information against, the defendant; that “carry” necessarily means and embodies the act of locomotion. This argument is fallacious, and might properly be said to have carried, or had,, no weight with •the trial court. The word “carries” or the words “to *70carry,” as used iu the statutes defining the offense (Code, § 6421; Acts 1909, p. 258), are used in the sense of to have concealed about the person, or to bear concealed about the person; and it is necessary to a conviction of this offense only that the concealed weapon be so connected with the person that the locomotion of (he body would carry with it the weapon as concealed. —Ladd v. State, 92 Ala. 58, 61, 9 South. 401; Cunningham v. State, 76 Ala. 88. The evidence is sufficient to support the judgment of conviction.

No error is shown, and the judgment of the court below will be affirmed.

Affirmed.'