Bailey v. Commonwealth
| Decision Date | 11 February 1876 |
| Citation | 74 Ky. 688 |
| Parties | Bailey v. Commonwealth. Stewart v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEALS FROM MERCER AND OWSLEY CIRCUIT COURTS.
THOMPSON & THOMPSON, For Appellant Bailey.
A. H. CLARK, For Appellant Stewart.
THOS. E. MOSS, Attorney General, For Appellee.
JUDGE COFER DELIVERED THE OPINION OF THE COURT.
These cases involve the same question, and will be disposed of in a single opinion.
The appellants were each convicted of the offense of carrying a deadly weapon concealed about his person, and seek a reversal of the judgment against them respectively, on the ground that the court erred in instructing the jury.
In Bailey's case the court instructed the jury that if they believed from the evidence beyond a reasonable doubt that the accused, in Mercer County, within one year before the finding of the indictment, carried concealed upon his person a deadly weapon, they must find him guilty, unless they also believed that he had reasonable ground to believe his person or property in immediate danger from violence or crime, and that by "immediate danger" the law means such as is then and there present and about to be inflicted, and that no threatened or impending danger which is not then about to be inflicted will avail as a defense.
In Stewart's case the instructions were in substance the same, except that there was no attempt to define the meaning of the phrase "immediate danger."
The statute prohibits the carrying of a deadly weapon, other than an ordinary pocket-knife, concealed upon or about the person. (General Statutes, sec. 1, art. 29, chap. 29.)
But section 5 of the same article provides that "carrying concealed deadly weapons shall be lawful in the following cases: first, when the person has reasonable grounds to believe his person, or the person of some of his family, or his property, is in immediate danger from violence or crime; second, by sheriffs, constables, marshals, policemen, and other ministerial officers, when necessary for their protection in the discharge of their official duties."
The instruction in each case follows the language of the statute, and the definition of the phrase "immediate danger," as given in Bailey's case, does not appear to be incorrect, if it is to be tested by the definitions given by standard lexicographers or by the rulings of this court.
Immediate is defined "having nothing intervening, either as to place, time, or action; instantaneous." (Worcester.) Webster defines immediate as "instant, present, without the intervention of time." The definition of the court is "that by immediate danger the law means such as is then and there about to be inflicted." In other words, the danger must have existed at the time and place when and where the weapon was carried concealed, and unless it did so exist it was no defense.
Section 17 of chapter 21 of the General Statutes provides that "all words and phrases shall be construed and understood according to the common and approved usage of language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed and understood according to such meaning."
The legislature having given us these rules by which to construe its language, and having seen that the court below has construed the word immediate "according to the common and approved usage of language," we must approve that construction unless the word construed is a technical word or has "acquired...
To continue reading
Request your trial
-
City of Campbellsburg v. Odewalt
...common law, and in construction it restricts the statute. Yet in some instances of this sort he incurs a civil liability." In Bailey v. Commonwealth, 74 Ky. 691, this court "Words in a statute were always to be understood according to the approved use of language. But there are other rules ......