Hathcote v. State

• Citation: 17 S.W. 721,55 Ark. 181
• Parties: HATHCOTE v. STATE
• Decision Date: 28 November 1891
• Court: Supreme Court of Arkansas

17 S.W. 721

55 Ark. 181

HATHCOTE v. STATE

Supreme Court of Arkansas

November 28, 1891

APPEAL from Grant Circuit Court, A. M. DUFFIE, Judge.

Pie Hathcote was convicted of carrying a pistol as a weapon. A witness, W. H. Crutchfield, testified that defendant, while engaged in carrying the mail, stopped at a postoffice on his route, and that, while sitting down waiting for the mail to be changed, a pistol dropped out of his pocket. Defendant testified: "At the time mentioned I was engaged regularly in carrying the United States mail for Mr. G. M Floyd, the contractor, from the town of Malvern, in Hot Spring county, to Sheridan, in Grant county, a distance of about thirty miles. It took a day to make a trip each way, I remaining over night at Sheridan. Carrying the mail as above stated was at that time my usual daily occupation. In going from Malvern to Sheridan and in returning my route took me past the house of Mr. Morton, where a postoffice was kept at which the mails were changed. The route I was compelled to travel daily lay for part of the distance through the Saline river bottoms, which are there covered with a dense forest and for a distance of four or more miles there is no house or other place where any person lives. I never owned or carried a pistol of any kind in my life, except when carrying an extra large mail or registered matter of value, on which occasion I carried a pistol given me by Mr. Floyd, my employer, and did not carry it then as a weapon but only for the purpose of guarding the mail if necessary. I had such a pistol at the time stated. It was not an army or navy pistol. It was loaded, and I carried it in my pocket, and for the purpose alone of protecting the mail." This was all the evidence.

The defendant asked the court in substance to instruct that if the jury found that he was engaged in carrying the United States mail or was upon a journey, they should acquit. The court refused the instruction as asked, and charged that mail carriers as such were not exempt from the penalties of the act, and that if defendant was going from a definite point to a definite point and in the regular routine of his daily business, he was not upon a journey, although he might go beyond the circle of his neighborhood in going from one of said points to another.

Reverse and remand.

Morris M. Cohn for appellant.

The appellant, being in discharge of his duty as mail carrier and having been charged with a crime in carrying out his duties as such mail carrier, is not amenable for such act to the State. 135 U.S. 1; 6 Wheat., 498; 3 Wall, 240; Rorer Inter-State Law, 15 (ed. 1875).

2. Appellant was on a journey. 34 Ark, 448.

W. E Atkinson, Attorney General, and Charles T. Coleman for appellee.

1. He was not on a journey; it was his daily occupation. 45 Ark. 761; 53 Ala. 519; 68 id., 41; 49 id., 355; 5 S.W. 90.

2. A mail carrier is not a public officer of the United States, nor was defendant acting in discharge of his duties in carrying a pistol as a weapon. Mech., Pub. Officers, secs. 41, 713, 5; 17 Gratt., 243. Nor has he, because he is a mail carrier, the right, under our statutes, to carry a pistol as a weapon. 11 S.E. 735. 135 U.S. 1, does not sustain the claim in this case. See the dissenting opinion in re Neagle.

OPINION

HEMINGWAY, J.

Engagement in the service of the federal government implies no license to violate State laws; and a crime against the State is not excused by the fact that the criminal was, at the time, though not in the act, of its commission, engaged in such service. No such doctrine is found in Neagle's case, for it only holds that what the federal government enjoins as a duty the State cannot punish as a crime. In re Neagle, 135 U.S. 1, 34 L.Ed. 55, 10 S.Ct. 658. It by no means follows that if a federal officer, while engaged in his employment, does some independent act in violation of State laws, he may not be held to answer for it. The defendant shows no authority from the federal government empowering him as a mail carrier to carry weapons; and we think the fact that he was a mail carrier affords no justification for the act, in the absence of such authority. State v. Barnett, 34 W.Va. 74, 11 S.E. 735; S. C., 11 S.E. 735.

But the defendant insisted that he was upon a journey when he carried the weapon, and therefore not liable to indictment; upon this defense he submitted instructions that were refused, and the court gave an instruction to which he excepted. Out of this arises the only other matter involved in the appeal.

The statute prohibits the carrying of weapons, but excepts from its operation "all persons when upon a journey." The alleged error in the court's charge relates to what constitutes a journey within the meaning of the exception. In its original acceptation a journey was a day's travel but in use it has attained a broader though less definite...