Mitchell v. State

1. Carrying Concealed Weapons. Pistol. Instructions. In a prosecution for carrying a concealed weapon, it was not error for the court to grant an instruction for the state, “that if the defendant carried concealed in whole, or in part, a pistol which was defective, in that it did not have a mainspring or a hammer, the jury should find the defendant guilty as charged. 2. Same. An object once a pistol does not cease to be one by becoming temporarily inefficient.

Appeal from, the circuit court of Covington county. Hon. W. H. Hughes, Judge. Carl Mitchell was convicted of carrying concealed weapons and appeals. The facts are stated in the opinion of the court. The evidence shows conclusively that the pistol carried by appellant had no hammer nor mainspring, both of which are necessary to make ■ it a deadly weapon. The carrying a piece or a part of a pistol, concealed in whole or in part, is not an indictable offense. Appellant* contends that the pistol had lost .so many of its vital parts, that it was no longer a firearm and was absolutely incapable of such. A pistol to be within the meaning of the statute and the danger sought to he prevented, must have all or so many of its vital and necessary parts that it may be carried and used as a deadly weapon. This pistol was wholly incapable of being fired off, hence it follows, it can not he a pistol or deadly weapon as contemplated by statute. This phase of the case was asked by the defendant in the court below to be given to the jury by special instructions, that if these facts were believed by the jury to be true, defendant should be acquitted, and the court erred in not giving these instructions. See Underwood v. State, 29 So. Rep., 777; Evins v. State, 46 Ala. 88-9; Cook v. State, Tex. App. Reports, vol. 11, p. 19. Our statute, section 1103, Code of 1906, makes it a midemeanor to carry a pistol concealed in whole or in part. This has no reference to whether the pistol is a deadly weapon as carried, of whether it could be used in its present condition. Our court has held in the case of the State v. Bollis, 73 Miss. 57, that a pistol need not be loaded. It is sought in the instant case, to instruct the jury that if the pistol in question had- no mainspring, or lacked any other vital part, it was not a deadly weapon, as contemplated by the statute, as it was incapable of inflicting death. The court will hold, in my opinion, that a pistol is a deadly weapon, per se, and it is not necessary, like it would be, were it a pocket knife, to show the manner of its use, or purpose of its carrying, but simply to show that- it was a pistol. A pistol without a trigger is just as dangerous, as an unloaded pistol. Our statute is intended to prevent the carrying of a concealed pistol, whether a deadly wapon or not. It is made a deadly weapon by the statute. One could commit robbery, or any other crime, by the use of a pistol which was minus a mainspring. If such trivial defense were allowed to be interposed, every defendant on trial would take the stand in his own behalf and testify that it was defective. He could load it and have it ready for action, and then testify that the trigger would not work and escape scott free. Our statute is made to accomplish a purpose, and it is hard enough to enforce without imposing the additional burden of showing that it was ready for action. In contradiction to the case cited by appellant, I invite the court to read the following case. “It is no excuse for one to carry a concealed pistol, that the mainspring of the lock is broken.” Williams v. State, 61 G-a. 417. The Alabama court hald under a statute similar to ours that a pistol so battered up that it cannot be discharged by the trigger was one within the meaning of the statute. Howard v. State, 58 Ala. 508. See also Hutchinson v. State, 62 Ala. 3; Bedus v. State, 82 Ala. 53. Our court should follow the evident purpose of the statute, and hold that a defect in the pistol is no defense for carrying it. The defendant had no business with this pistol. The greatest evil in our state is the unlawful carrying of concealed weapons, and when the legislature, in its wisdom, tries to stamp it out, the courts should unhesitatingly give their assistance. This court has already set the example in the Hollis case by holding that a pistol'need not be loaded. See also Gambin v. State, 45 Miss. 658; State v. Dugan, 6 Blackf. (Ind.) 31: