State v. Hewell

State v. Jesse Hewell.

State v. Hewell, 90 N.C. 705 (1884)

Court: Supreme Court of North Carolina · State Highest Courts
Decided: February 5, 1884
Judges: Ashe
Citations: 90 N.C. 705

Cited by 2

Headnotes

PuMie Road — Easement—Concealed Weapon. 1. The laying oil' a highway over one’s land does not deprive him of the freehold covered by the road. The public acquire only an easement — the right to pass and repass. 2. On trial of an indictment for carrying a concealed weapon off the defendant’s own premises, the jury found specially that defendant, a minor, was seen with a pistol in a public road which ran over his father’s land, and the judge ruled he was not guilty ; Held, no error. In contemplation of law the son was not off his own premises. (State v. Davis, 80 N. C., 351, cited and approved).

Summary

INDICTMENT for carrying concealed weapon, tried at Fail Term, 1883, of Mitchell Superior Court, before Graves, J. The indictment was found at spring term, 1883, as fellows: “ The jurors for the state upon their oaths present, ¡hat Jesse Howell, late of the county of Mitchell, on the first clay of March, 1883, with force and arms at and in the county aforesaid, unlawfully and wilfully, and not on his own premises, did carry concealed about his person a certain pistol, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.” The defendant pleaded not guilty and the jury returned the following special verdict: ' “That the said Jesse ITewell was in the public road with a pistol; that the road was over the land of the defendant’s father; and that the defendant was a minor living with his father.” Upon .this finding, the court held that the defendant was not guilty, and the state solicitor appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Ashe

Ashe, J.

The defendant 'was indicted under the act of 1879, oh. 127, the first section of which declares it “shall be unlawful for any person in this state, except when upon his own premises, to carry concealed about his person any pistol, bowie-knife, dirk, dagger, slung-shot, loaded cane, brass or metallic knuckles, or other deadly weapon of like kind.” And the third section provides that “any person being off his own premises and having on his person any deadly weapon described in section one, such possession shall be prima faoie evidence of the concealment thereof.”

According to the finding of the jury, the defendant was not guilty of a violation of this. act.

The public road, in which the defendant was seen with the postol, was a road running over the land of his father.

The fact that a public road is laid off on a man’s land does not deprive him of the freehold of the land covered by the road. His title continues in the soil, and the public acquire only an casement, that is, the right of passing and repassing along it.

State v. Davis, 80 N. C., 351 ;

Dovaston v. Payne, 2 Smith, L.

*707 C., 90. The father certainly could not be indicted for carrying a pistol on the road over his own land, because it is on his own premises; and the son being a minor and living with his father as a member of his family, is in contemplation of law not off his own premises when on his father's land, where he has a right to be.

There is no error. Let this be certified to the superior court of Mitchell county that the defendant may have his discharge.

No error. Affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 2 cases

View all citing references →

State Highest Courts2

Relies on it most ⓘ

State v. Gainey160 S.E.2d 685 (N.C. 1968)
Long v. Melton10 S.E.2d 699 (N.C. 1940)

Most recent

State v. Gainey160 S.E.2d 685 (N.C. 1968)
Long v. Melton10 S.E.2d 699 (N.C. 1940)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

Depth	Case	Cited by
	State v. Davis, 80 N.C. 351 (1879)	11

`/`	Focus the search box
`j` `k`	Next / previous result
`Enter`	Open the selected result
`x`	Add / remove the selected result from the download list
`n` `p`	Next / previous search term in a case
`c`	Copy the citation of the current case
`+` `−`	Larger / smaller reading text
`?`	Show this list