State v. . Hewell

Ashe, J. The defendant 'was indicted under the act of 1879, oh. 127, the first section of which declares it “shall be unlawful for any person in this state, except when upon his own premises, to carry concealed about his person any pistol, bowie-knife, dirk, dagger, slung-shot, loaded cane, brass or metallic knuckles, or other deadly weapon of like kind.” And the third section provides that “any person being off his own premises and having on his person any deadly weapon described in section one, such possession shall be prima faoie evidence of the concealment thereof.” According to the finding of the jury, the defendant was not guilty of a violation of this. act. The public road, in which the defendant was seen with the postol, was a road running over the land of his father. The fact that a public road is laid off on a man’s land does not deprive him of the freehold of the land covered by the road. His title continues in the soil, and the public acquire only an casement, that is, the right of passing and repassing along it. State v. Davis, 80 N. C., 351; Dovaston v. Payne, 2 Smith, L. *707 C., 90. The father certainly could not be indicted for carrying a pistol on the road over his own land, because it is on his own premises; and the son being a minor and living with his father as a member of his family, is in contemplation of law not off his own premises when on his father's land, where he has a right to be. There is no error. Let this be certified to the superior court of Mitchell county that the defendant may have his discharge. No error. Affirmed.