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[Cite as State v. Smith, 11 La. Ann. 633, 66
Am. Dec. 208 (1856).]
STATE v. J. T. SMITH.
(Monroe. July, 1856.)
The statute against carrying concealed weapons does
not contravene the second article of the amendments of the
Constitution of the United States.
A partial concealment of the weapon, which does not
leave it in full open view, is a violation of the statute.
Appeal from the District Court of the parish of
Claiborne, Land, J.
The record does not show who appeared for the
George, for defendant and appellant.
MERRICK, C. J. The defendant was indicted and
convicted of carrying concealed weapons. He takes the present appeal to reverse
the charge of the judge to the jury. The language used in the charge, and
excepted to, is "that carrying of a pistol in the pocket, under the clothes,
although partially exposed, is the carrying of concealed weapons within the
meaning of the statute."
The charge is objected to, "first, because it is a direct charge upon
the facts of the case, and secondly, an evident misinterpretation of the
The charge was not a charge upon the facts, although the facts proven
before the jury may have been similar. The judge charges upon the facts when he
expresses an opinion upon what has been proven to the jury, or when he assumes a
given state of facts as proven, and not where he expresses, as in this case, his
opinion of the law arising from a state of things which may, or may not, have
been established before the jury, and upon the proof of which he abstains from
intimating any opinion. On the other branch of the case, we are not satisfied
that the charge of the judge misled the jury as to the law of the case.
The statute against carrying concealed weapons does not contravene
the second article of the amendments of the Constitution of the
United States. The arms there spoken of are such as are borne by a people
in war, or at least carried openly. The article explains itself. It is in these
words: "A well regulated militia being necessary to the security of a free
State, the right of the people to keep and bear arms shall not be infringed."
This was never intended to prevent the individual States from adopting such
measures of police as might be necessary, in order to protect the orderly and
well disposed citizens from the treacherous use of weapons not even designed for
any purpose of public defence, and used most frequently by evil-disposed men who
seek an advantage over their antagonists, in the disturbances and breaches of
the peace which they are prone to provoke. There is, therefore, nothing in
(p.634)the Constitution of the United States
which requires of us a rigorous construction of the statute in question.
The section of statute under which the indictment is framed, is in
"Be it further enacted, &c., That whoever
shall carry a weapon or weapons concealed on or about his person, such as
pistols, bowie knife, dirk or other dangerous weapon, shall be liable to a
prosecution by indictment or presentment, and on conviction for the first
offence shall be fined not less than two hundred and fifty dollars nor more
than five hundred dollars, or imprisoned for one month; and for the second
offence not less than five hundred nor more than one thousand dollars, or
imprisonment in the parish prison at the discretion of the court, not
exceeding three months, and that it shall be the duty of the judges of the
district courts in this State to charge the grand jury especially as to this
The offence created by this statute is the
carrying of the weapon, pistol, bowie knife or dirk, &c., concealed on or
about the person. By the first section of the Act of 1813, a weapon of the kind
designated was defined as concealed when, being carried by a person, it did not
appear in full open view." Act 1813, p.172, sec. 1.
A partial concealment of the weapon, which does not leave it in full
open view, is a violation of the statute. The judge, in the single expression in
his charge to the jury excepted to, does not fully explain himself, yet we think
a fair construction of his language does not imply more than is here expressed.
He says the carrying of a pistol (a weapon designated by the statute,) in the
pocket or under the clothes, although partially exposed, is the carrying of a
concealed weapon. We must understand the district judge as speaking of weapons
as ordinarily worn, and where the partial exposure is the result of accident or
want of capacity in the pocket to contain, or clothes fully to cover the weapon,
and not to the extremely unusual case of the carrying of such weapon in full
open view, and partially covered by the pocket or clothes. We cannot say, from
the single expression of the charge excepted to, that such error has intervened
on the trial of this case as to require us to reverse the judgment.