State v. Johnson

• Decision Date: 15 November 1881
• Docket Number: CASE No. 1108.
• Citation: 16 S.C. 187
• Parties: STATE v. JOHNSON.
• Court: South Carolina Supreme Court

16 S.C. 187

STATE

v.JOHNSON.

CASE No. 1108.

Supreme Court of South Carolina.

Nov. 15th, 1881.

1. One indicted under the act of 1880 (17 Stat. 447), for carrying a pistol concealed about his person, has the right, on demand, to have the jury explicitly instructed that it was necessary to a conviction that the State should prove that the pistol was concealed about his person.

2. A penal statute must be strictly construed, but not so as to defeat the obvious intent of the legislature.

3. The offense is complete under this statute if the prohibited weapon is so concealed as to be generally hidden from ordinary observation.

4. The purpose of the act is to prohibit, as far as consistent with the citizen's right to bear arms, the carrying of deadly weapons, with a view to prevent acts of violence and bloodshed.

Before ALDRICH, J., Edgefield, March, 1881.

Indictment against Hughes Johnson for carrying a pistol concealed about his person on January 30th, 1881. The defendant was convicted and sentenced to imprisonment in the penitentiary at hard labor for six months.

Mr. J. C. Sheppard, for appellant.

Mr. Solicitor Bonham, contra.

The opinion of the court was delivered by

MCIVER, A. J.

This was an indictment under the act of December 24th, 1880, (17 Stat. 447,) entitled “An act to provide a punishment for carrying any deadly weapon concealed about the person.” In the first section the act declares “that any person carrying a pistol *** concealed about his person shall be guilty of a misdemeanor,” &c. The charge in this case was that the defendant “carried concealed about his person a certain deadly weapon, to wit, a pistol.” One of the witnesses testified that the defendant “had his pistol under his coat, but I saw it,” while other witnesses testified that the pistol was carried in the waistband of his pantaloons. “The handle was sticking out so that any one could see it.” “Anybody could see it who could see him.” The report of the Circuit judge is very brief, and is in the following words: “It was argued that if the weapon could be seen it was not concealed. The proof was that the defendant had a pistol in his waistband, the butt sticking out in part. I charged the jury that the purpose of the legislature was to prevent this pernicious habit; that when one had a weapon on his person which could be seen in his pocket or in his waistband, he came within the meaning of the act, otherwise there could be no conviction under the law, for whenever a weapon was seen that would be an end of the case. It was for the jury to say if the defendant had a concealed weapon on his person in the meaning of the act. They found a verdict of guilty. I was asked to charge that the weapon ‘must be concealed about the person,’ and charged as I have here reported.”

The defendant appeals on two grounds: First—Because there was error in charging “that the purpose of the legislature was to prevent this pernicious habit; that when one had a weapon on his person which could be seen in his pocket or waistband, he came within the meaning of the act.” Second—“Because his Honor erred in refusing to charge, as requested by defendant's counsel, that in order to convict the defendant it was necessary for the State to prove that the weapon charged in the indictment was concealed about his person.”

It will be observed that to constitute the offense charged it is necessary to show not only that the defendant carried about his person a weapon of the kind mentioned in the statute, but such weapon must be “concealed about his person.” Hence, we think that the Circuit judge erred in declining, or, at least, omitting to charge as requested It may be, and doubtless is, the fact that the Circuit judge considered that he had sufficiently covered this point by the charge which he gave, but in this we cannot agree with him, for we think that the defendant had a right to have the jury explicitly instructed upon this point, as the fact of carrying a weapon concealed about the person constitutes the gist of the offense, inasmuch as merely carrying the weapon constitutes no violation of the statute, unless it is concealed about the person.

Whether the first ground of appeal can be sustained depends upon the construction which should be given to the word “concealed,” as used in the statute. It is contended in the argument here that unless the weapon is entirely concealed from observation there is no violation of the law, and that when it is only partially concealed the statute is not violated. It is very true that the rule is that penal statutes must be construed strictly, but they are not to be so strictly construed as to defeat the obvious intention of the legislature. United States v. Wiltberger, 5 Wheat. 95;American Fur Co. v. United States, 2 Pet. 367;United States v. Morris, 14 Pet. 475. Now, in this case, if the word “concealed” should be construed to mean entirely or completely hidden from observation, then the manifest object of the legislature would be...