State v. Quail

• Decision Date: 21 October 1914
• Citation: 28 Del. 310,92 A. 859
• Court: Court of General Sessions of Delaware
• Parties: STATE v. THEODORE QUAIL

92 A. 859

28 Del. 310

STATE v. THEODORE QUAIL

Court of General Sessions of Delaware, Kent County

October 21, 1914

Court of General Sessions, Kent County, October Term, 1914.

Theodore Quail was charged with unlawfully carrying concealed a deadly weapon.

INDICTMENT (No. 12, October Term, 1914) alleging--

"that Theodore Quail, late of Mispilion Hundred, on the fourteenth day of October, 1914, with force and arms at Mispilion Hundred did then and there unlawfully carry concealed a deadly weapon upon and about his person, other than an ordinary pocket knife, namely, a revolver," etc.

At the trial the state proved that at the time and place laid in the indictment there was found concealed upon the person of the accused an unloaded revolver.

Counsel for accused thereupon asked the court to instruct the jury to return a verdict of not guilty because of a variance between the proof and the allegation in the indictment, in that the indictment charged the accused with carrying concealed a deadly weapon, namely, a revolver, while the proof showed that he carried concealed an unloaded revolver, which was not, in that condition, a deadly weapon. Chapter 548, Volume 16, Laws of Delaware, Rev. Code, p. 987, § 1, as amended by 25 Del. Laws, c. 252.

John B Hutton, Deputy Attorney General, for the state.

Thomas C. Frame, Jr., for the accused.

PENNEWILL C. J., and CONRAD and HEISEL, J. J., sitting.

OPINION

PENNEWILL, C. J.

The defendant asks that the jury be instructed to return a verdict of not guilty, because it appears from the evidence of the state that the revolver found upon the prisoner's person was unloaded. The statute upon which the indictment is based is in the following language:

" Section 1. That if any person shall carry concealed a deadly weapon upon or about his person other than an ordinary pocket knife, or shall knowingly sell a deadly weapon to a minor other than an ordinary pocket knife, such person shall, upon conviction thereof, be fined not less than twenty-five nor more than two hundred dollars or imprisoned in the county jail for not less than ten days nor more than six months, or both at the discretion of the court: Provided, that the provisions of this section shall not apply to the carrying of the usual weapons by policemen and peace officers."

The manifest policy and intent of this law is to prevent carrying concealed a revolver or other weapon which may be used for a...