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[Cite as Jones v. State, 51 Ala. 16
JONES v. THE STATE.
INDICTMENT FOR CARRYING CONCEALED WEAPONS.
Carrying concealed weapons; what
constitutes.--To constitute concealment within the meaning of the statute
against carrying concealed weapons (Rev. Code, § 3555), it
is sufficient if the weapon be hidden from ordinary observation, although it may
be seen on closer examination; and this must be determined by the jury. But, if
there is any evidence tending to show that the weapon was not concealed, it is
error to refuse to charge the jury, on request, that they must acquit the
defendant unless they are convinced, from all the evidence, that he did carry it
concealed about his person.
From the Circuit Court of Geneva.
Tried before the Hon. J. McCaleb Wiley.
The prisoner in this case was indicted for carrying a pistol
concealed about his person, and pleaded not guilty to the indictment. On the
trial, as the bill of exceptions states, one (p.17) Birch was introduced as a witness for the prosecution, who
testified that, on a particular day within the period covered by the indictment,
he walked with the defendant to a spring, where the defendant knelt down to
drink; "that while kneeling down, his coattail fell over behind, and witness saw
the end of a pistol on him, and in his rear; that when the defendant got up, his
coat fell over the pistol, and witness did not see it any more; and that he did
not know whether the pistol could have been seen on the defendant in front at
the time, as he did not look for it." The defendant then introduced one
Crutchfield as a witness, who testified that, on the day mentioned by the
witness Birch, he and the defendant had been hunting hogs together in the woods;
"that the defendant carried his pistol, a portion of the day, by the belt at the
horn of his saddle, and had it belted around him the rest of the time, so that
the butt-end could be seen all the time in front of him; that he saw the
butt-end of the pistol in front of the defendant a short time before he and
Birch started to the spring, but did not see it at the time they started,
because his attention was not called to it then." This being all the evidence,
the defendant asked the court to give the following instructions in writing to
the jury: "1. If the jury are not convinced, from all the evidence, that the
defendant did carry the pistol concealed about his person, then they must find
him not guilty, although they might also believe, from the evidence, that the
witness Birch only saw the pistol while they were at the spring. 2. If the jury
believe, from the evidence, that the pistol could have been seen in front of the
defendant, then he is not guilty, although they may also believe, from the
evidence, that the witness Birch did not see it while walking by his side to the
spring." The court refused both of these charges, and the defendant excepted to
their refusal; and their refusal is now assigned as error.
W. D. Roberts and F. M. Wood, for the prisoner.
Ben. Gardner, Attorney General, for the State.
B.F. SAFFOLD, J.--To constitute concealment, it is
not necessary that the weapon may be seen from without, by inspection, or
examination, more or less close; it is sufficient if it is hidden from ordinary
observation; and this must be determined by the jury. Of course, if the jury are
not convinced of its being carried concealed, the defendant must be acquitted.
One witness testified, that the pistol was strapped around the defendant's
waist, in such manner as to exhibit the handle of it to persons in front of him.
The court erred in refusing to charge the jury, as requested, that they must
acquit (p.18)the defendant, if they were not
convinced, from all the evidence, that he did carry the pistol concealed about
The judgment is reversed, and the cause remanded.