State v. Charles Tapit.

• Decision Date: 21 March 1903
• Citation: 52 W.Va. 473
• Parties: State v. Charles Tapit.
• Court: West Virginia Supreme Court

52 W.Va. 473

State

v.Charles Tapit.

Supreme Court of Appeals of West Virginia.

Submitted September 5, 1902.

Decided March 21, 1903.

1. Carrying Concealed Weapons Revolver.

If a person on request of the owner carry a revolver from his (the carrier's) boarding house to a shop to be repaired, he is technically guilty under section 7, chapter 148, Code, although such revolver was broken at the time, and would not explode a cartridge. (p. 475).

Writ of error to Circuit Court, Clay County.

Action by State of West Virginia against Charles Tapit. Judgment for plaintiff, and defendant appeals.

Affirmed,

Attorney General, for plaintiff.

Henry B. Davenport, for defendant.

Dent, Judge:

In the case of the State against Charles Tapit, the defendant was found guilty by the circuit court of Clay County, a jury having been waived, of carrying a revolver, and judgment was entered against him imposing a line of twenty-live dollars. Here he relies on two assignments of error.

The first is that the demurrer to the indictment was not sustained. The indictment was found under section 7, chapter 148, Code, which is as follows: "If any person carry about his person a revolver or other pistol, dirk, bowie knife, razor or slung shot, billy, metalic or other false knuckles, or any other dangerous or deadly weapon of like kind or character, he shall be guilty of a misdemeanor and fined not less than twenty-five dollars nor more than two hundred dollars, and may at the discretion of the court, be confined in jail not less than one nor more than twelve months; and if any person shall sell or furnish any such weapon as is hereinbefore mentioned to any person whom he knows, or has reason, from his appearance or otherwise, to believe to be under the age of twenty-one years, he shall be punished as hereinbefore provided; but nothing herein before contained shall be so construed as to prevent any person from keeping or carrying about his dwelling house or premises, any such revolver or other pistol, or from carrying the same from the place of purchase to his dwelling house, or from his dwelling house to any place where repairing is done, to have it repaired and back again. And if upon the trial of an indictment for carriyng any such pistol, dirk, razor or bowie knife, the defendant shall prove to the satisfaction of the jury that he is a quiet and peaceable citizen, of good standing and character in the community in which he lives, and that at the time he was found with such pistol, dirk, razor or bowie knife, as charged in the indictment, he had good cause to believe, and did believe that he was in danger of death or great bodily harm at the hands of another person, and that he was in good faith carrying such weapon for self-defense, and for no other purpose, the jury shall find him not guilty. But nothing in this section shall be so construed as to prevent any officer, charged with the execution of the laws of the State, from carrying a revolver, or other pistor, dirk, or bowie knife." The grounds of demurrer relied on are as follows, to-wit: That the indictment does not aver that the pistol was a dangerous or deadly weapon, nor that the place where the defendant had the revolver was not about his dwelling house, etc; nor that he was not carrying it from the place of purchase to his dwelling house; nor that he was not carrying it from his dwelling house to a place where, repairing was done, to have it repaired; nor that the said defendant was not then and there an officer charged with the execution of the laws of the State, etc. Presumptively a revolver or pistol is a dangerous and deadly weapon, and if; is unnecessary to so allege in the indictment. The other matters are exceptions contained in separate clauses of the...