Sutherland v. Commonwealth

• Citation: 65 S.E. 15,109 Va. 834
• Parties: SUTHERLAND. v. COMMONWEALTH.
• Decision Date: 17 June 1909
• Court: Virginia Supreme Court

65 S.E. 15

109 Va. 834

SUTHERLAND.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 17, 1909.

1. Statutes (§ 241^*)—Construction—Penal Statutes.

Penal statutes must be construed strictly against the state and favorably to the liberty of the citizen.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. § 241.*]

2. Weapons (§ 10*)—Carrying Concealed Weapons — Acts Not Constituting Offense—"About the Person."

The purpose of Acts 1908, p. 381, c. 259, providing that "if any person shall carry about his person, hid from common observation, any pistol, * * * he shall be fined, " etc., is to interdict the practice of carrying a deadly weapon about the person, concealed, and yet so accessible as to permit prompt and immediate use, and the words "about the person" must mean that it is so connected with the person as to be readily accessible for use or surprise if desired, and hence a pistol in a scabbard and in a pair of saddlebags with the lids down, though the bags be in the hand, does not fall within the language of the statute.

[Ed. Note.—For other cases, see Weapons, Cent. Dig. § 9; Dec. Dig. § 10.*

For other definitions, see Words and Phrases, vol. 1, pp. 28, 29.]

3 Criminal Law (§ 13*)—Necessity of Offense Coming Within Spirit and Letter of Statute.

An action, to constitute an offense, must come within the spirit and letter of the statute.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 13, 14; Dec. Dig. § 13.*]

Appeal from Circuit Court, Dickenson County.

One Sutherland was convicted of carrying a concealed pistol, and he appeals. Reversed.

S. H. Sutherland, for appellant.

William A. Anderson, Atty. Gen., for the Commonwealth.

HARRISON, J. In this case the accused was charged with unlawfully carrying about his person a pistol which was concealed from common observation.

The evidence in support of this charge is that the accused placed a pistol, incased in its scabbard, in a pair of saddlebags, pulled the lids of the saddlebags down, hiding the pistol from view, and carried the saddlebags in his hand down the road until out of sight.

The question presented is whether or not it is a violation of the statute against carrying concealed weapons for a man to carry in his hand a pair of saddlebags containing a pistol, which is hidden from common observation.

So much of the statute as is necessary to the consideration of this question is in these words: "If any person carry about his person hid from common observation, any pistol, * * * he shall be fined not less than $20.00 nor more than $100.00." Acts 1908, p. 381, c. 259.

This is a penal statute, and it is an ancient maxim of the law that all such statutes must be construed strictly against the state and favorably to the liberty of the citizen. The maxim is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the Legislature, and not in the judicial department. No man incurs a penalty unless the act which subjects him to it is clearly within the spirit and letter of the statute which imposes such penalty. There can be no constructive offenses, and before a man can be punished his case must be plainly and unmistakably within the statute. If these principles are violated, the fate of the accused is determined by the arbitrary discretion of the judges, and not by the express authority of the law. Harris v. Com., 81 Va. 240, 59 Am. Rep. 666; Lascallett v. Com., 89 Va. 878, 17 S. E. 546; United States v. Wiltberger, 5 Wheat 76, 5 L. Ed. 37.

In the light of this fundamental rule of construction, we are of opinion that the question raised by this...