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[Cite as Porter v. State, 66 Tenn. (7 Baxt.)
Porter v. The
1. Criminal Law.
Indictment. An indictment charging the defendant with "carrying upon his
person a pocket pistol, other than an army pistol and such a pistol as is
usually used in the U.S. army," is sufficiently certain and descriptive of the
offense under the statute.
2. Same. Carrying
pistols. A "pocket pistol" is such a pistol as a man ordinarily carries, or
may conveniently carry, or actually carries, on his person in his pocket. The
name of the pistol is unimportant, and the number of times the pistol shoots is
Appeal from the Circuit Court. Thos. J. Flippin, Judge.
No brief for complainant.
Nicholson, C. J., delivered
the opinion of the Court.(p.107)
David M. Porter was tried and convicted in the Circuit Court of
Lauderdale county, on a presentment for unlawfully carrying a pistol.
The presentment contained three counts. In the first defendant was
charged with unlawfully "carrying upon his person a pocket pistol other than an
army pistol and such a pistol as is usually used in the U.S. army." In the
second, for "carrying a belt pistol, other than an army pistol and such as is
usually used in the U.S. army." And in the third, for carrying upon his person
an army pistol, the same being such a pistol as is usually used in the U.S.
army, not then and there having said pistol openly in his hands."
The Circuit Judge overruled a motion to quash the two first counts of
the presentment. The motion to quash was made upon the ground that the first and
second counts do not charge an indictable offense.
It is insisted that the Circuit Judge erred in overruling the motion
to quash, for the reason that upon the proper grammatical construction of the
language of the presentment, defendant is charged with carrying "such a pistol
as is usually used in the U.S. army," which is not an indictable offense.
The language of the presentment follows substantially that used in
the act of 1871, ch. 90, which defines the offense as
follows: "publicly or privately carrying a belt or pocket pistol or revolver,
other than an army pistol, or such as are commonly carried and used in the U.S.
The charge in the first count is, that defendant (p.108)carried on his person a pocket pistol, other than an
army pistol, and such a pistol," that is, and other than "such a pistol as is
usually used in the U.S. army."
The obvious intention of the draftsman of the presentment, in the
first and second counts, was to negative the idea that the pocket or the belt
pistol charged to have been worn by the defendant, was either an army pistol or
a pistol usually used in the U.S. army. This is done with sufficient certainty
by the language employed. There was, therefore, no error in overruling the
motion to quash.
The question before the jury seems to have been whether the pistol
shown to have been in the hands of the defendant was an army pistol or not.
It was in reference to the proof on this question of fact that the
judge instructed the jury, that "a pocket pistol is such a pistol as a man
ordinarily carries, or may conveniently carry, or actually carries on his person
in his pocket. The name of the pistol is unimportant, and the number of times
the pistol shoots is immaterial. So a belt pistol is such a pistol as a man
usually carries, or that may be conveniently carried, or is actually carried on
the person in a belt.
This description is not intended to comprehend such a class of
pistols as fall under the head or description of army pistols, or such as are
usually worn and carried in the U.S. army, for example, Colt's navy six or large
army pistols; for as to these the law gives him authority to carry them,
provided he does so openly and in his hands.(p.109)
You will then determine from the proof whether, if the proof shows
that the defendant had a pistol, it falls under the head of a belt or pocket
pistol, or an army pistol, and if the latter, whether it was carried as
authorized by law.
We think this charge is clear and strictly correct as applicable to
the proof in the case.
The jury found the defendant guilty, and the proof fully sustains
The judgment is affirmed.