State v. Ware
| Decision Date | 11 November 1912 |
| Docket Number | 16,152 |
| Citation | 102 Miss. 634,59 So. 854 |
| Court | Mississippi Supreme Court |
| Parties | STATE v. B. A. WARE |
APPEAL from the circuit court of Newton county, HON.C. L. DOBBS Judge.
B. A Ware was convicted of unlawfully exhibiting a deadly weapon in a justice of the peace court and appealed to the circuit court, where he filed a demurrer to the affidavit which being sustained by the court, the state appeals.
The facts are fully stated in the opinion of the court.
Demurrer overruled.
Frank Johnston, assistant attorney-general, for appellant.
This is an appeal by the state. The defendant was indicted for exhibiting a deadly weapon in a rude, angry and threatening manner. The indictment charges that he exhibited in a rude, angry, and threatening manner a pocket knife, which was a deadly weapon in the presence of three or more persons, not in necessary self defense. The court held this indictment to be invalid, and sustained a demurrer to the same. I refer the court to section 1110, of the Code of 1906. The averment in the indictment was that the particular knife exhibited on that occasion was a deadly weapon. In point of fact there may be pocket knives that are not deadly weapons in the usual acceptance of the term, and there are certainly many pocket knives that are as deadly a weapon as a dirk or a stiletto. On demurrer, therefore, the averment of the declaration was that this particular knife was a deadly weapon.
It may be contended that section 1110, by the use of the term "any such person," applies only to those persons named in section 1109 of the Code, which are students and teachers, and instructors or professors. I do not think this construction can be sound, for then the statute 1110 would apply to a limited class of persons, and there is no other class of persons who exhibit weapons in a rude, angry, and threatening manner, who could be proceeded against at all under the statute. I submit that the term, "any such person," must relate back to all the preceding sections inclusive of section 1103, which undoubtedly is broad enough to include all persons of every class and description. That this construction is true is shown by the fact that section 1104 refers back generally to section 1103, as does 1105, and refers to all such persons who carry a deadly weapon. Then section 1110, following the same phraseology identically declares that any such person, etc., carrying any dirk, knife or dirk knife or other deadly weapon, the carrying of which concealed is prohibited, is guilty of the offense.
So therefore upon the clearest interpretation of section 1110, that provision relates to any such person, or to any person having or carrying any deadly weapon, the carrying of which concealed is prohibited. The provision is clearly that if any such person as this, who is carrying a concealed weapon in violation of the law exhibits the same in a rude, angry, and threatening manner in the presence of three or more persons, not in necessary self-defense, is guilty of the statutory offense.
I respectfully submit to the court that there is no rule of statutory construction which could possibly limit the application and operation of section 1110, to the particular persons described and specified in section 1109. =
An affidavit was made against appellee in a justice of the peace court, in which it was charged that he "did unlawfully exhibit a deadly weapon, to wit, a pocketknife, in the presence of three or more persons, in a rude, angry, or threatening manner, not in his necessary defense." He was convicted, and appealed to the circuit court. He filed a demurrer to the affidavit, which the court sustained.
An objection to the affidavit is that a pocketknife is not a deadly weapon within the meaning of the statute. It is well known that a pocketknife, in many cases, is deadly in its effect. In the case of State v. Sims, 80 Miss. 381, 31 So. 907, a brick was decided to be a deadly weapon. In delivering the opinion of the court in that case, TERRELL, J., said: "The most usual cases of felonious assaults that we hear of are those made by pocketknives, which are not mentioned in section 1026 of the Code, and it has never been thought that such indictments are defective because pocketknives are not described as deadly weapons by legislative authority." The affidavit charges that the knife is a deadly weapon. This is sufficient.
It is contended in the demurrer that the word "such," in the beginning of section 1110 of the Code of 1906, limits the persons to be charged under this section to those classes of persons mentioned in sections 1109, 1108, 1107, and 1106 of the Code of 1906. It will be noted that the title to section 1110 is as follows: "The Same; Exhibiting in Rude, Angry, or Threatening Manner, etc."--and that the first part of that section reads as follows: "If any such person, having or carrying any dirk, dirk knife, sword, sword cane, or any deadly weapon, or other weapon the carrying of which concealed is prohibited, shall, in the presence of three or more persons, exhibit the same in a rude, angry, or threatening manner, not in necessary self-defense, or shall in any manner unlawfully use the same in any fight or quarrel, the person so offending, upon conviction thereof, shall be fined in a sum not exceeding five hundred dollars or be imprisoned in the county jail not exceeding three months, or both." Section 1103, Code of 1906, begins the subject of deadly weapons, and it corresponds to section 1026 of the Code of 1892. Section 1104 is a new law, being a new Code section, and first in the Code of 1906. Its subject is "Weapons Forfeited." Section 1105 corresponds to section 1027 of the Code of 1892, and is under the title: "The same; Not Applicable to Certain Persons." Section 1106 is a new Code section, under the subject: "Dealers to Keep Record of Cartridges and Weapons Sold." Section 1107 (section 1028, Code 1892) is under the subject: "The Same; Cartridges Not Sold to Infant or Drunk Person." Section 1108 (section 1029, Code 1892) is under the subject: "The Same; Father Not to Suffer Infant Son to Have or Carry." Section 1109 (section 1030, Code 1892) is under the subject: "The Same College Students Not to Have, etc."
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