State v. . Dixon

Clark, J.: The defendant carried the pistol concealed about his person off his own premises. The criminal intent in such cases is the intent to carry the weapon concealed. The matter set up in defence is not sufficient, and upon the defendant’s own testimony he was guilty. As there seems a misconception to some extent of the authorities it may bo'well to review them: In State v. Speller, 86 N. C., 697, the act forbidding the carrying of concealed weapons was held constitutional; and it was further held that the party would be guilty of violating the act though he carried the weapon for self-protection in consequence of threats of violence. In State v. Woodfin, 87 N. C., 526, it was held no defence to show that the concealed weapon was carried for the purpose of hunting. In State v. Gilbert, 87 N. C., 527, it was held that the presumption of guilty intent from the fact of the weapon being concealed was rebutted by the express finding of the jury, in the special verdict, that there was no guilty intent. There, a merchant had bought a pistol in his trade and was carrying it from one store to another. “Thoughtlessly,” as the Court says, he put it in his pocket without intending 'to conceal it. The guilty intent, it is there said, is the purpose to cany it so it may not be seen,” and that purpose the jury found did not exist in that case. This decision has been much misunderstood. *853 In State v. Broadnax, 91 N. C., 543, it was lield that one was not guilty who was merely carrying to the owner a pistol for which he had been sent, since the offence was the wearing or carrying of a concealed weapon which the bearer might use on an emergency. This purports to be based upon Gilbert’s case, supra, but in fact was an extension of the principle of that case carried to its extreme limit. It can only be sustained on the ground that the' party was not intending to carry a weapon at all, but was simply conveying a piece of merchandise, as an express messenger might carry a pistol or rifle in a box or case in the line of business. In State v. Harrison, 93 N. C., 605, it was held that if the defendant carried the weapon concealed on his person, but testified that he did so for the purpose of trading it off, this was evidence to rebut the intent, and should have been submitted to the jury. After the fullest consideration, and with deference to the eminent Judge who delivered the opinion, wo cannot think so, nor do we concur in the reason given that it was “on all-fours” with Gilbert’s case. In Gilbert’s case the jury found that there was no criminal intent; i. e., no intent to carry the weapon concealed, it being a sample pistol thoughtlessly put in the pocket of the overcoat by the merchant purchaser and carried from one store to another to be packed up with other purchases. In Harrison’s case the defendant jmrposely and intentionally carried the weapon concealed. 'There was full opportunity to use it if occasion offered, and the defendant’s act came within the spirit and letter of the statute. There was no reason why the pistol could not have been carried openly, as the defendant could have legally carried it. This would have given bettor opportunities of negotiating a sale than the concealed carriage of it. Having said this much, it is unnecessary to say more *854 than that his Honor correctly charged the jury in the present-case “that if one could borrow or procure a pistol to sell or convey it about with him from place to place, during a period of several months, trying to sell it and selecting public days for the purpose as well, and shooting some five times on a picnic occasion, the statute would be a dead letter; that upon the whole evidence, if believed, the defendant was guilty.” This was in effect a charge that there was no evidence sufficient to go to the jury to rebut the presumption of guilt which the statute raises from the possession about his person of a deadly weapon off one’s own premises. State, v. McManus, 89 N. C., 555. The carrying a concealed weapon cannot be excused because carried in self-defence or for hunting. Of course, therefore, it cannot be excused if carried for the purpose of peddling it off, with all the incidental opportunities of use. To so hold would be a virtual and effective repeal of the statute. The presumption may be rebutted by an express finding that there was no guilty intent, as where the pistol was carried from one store to another to be packed up, without any thought or intent to conceal it, or where, under some circumstances, it is carried- by a messenger to be delivered to the owner or purchaser. But matters of excuse can be extended no further with safety and a due regard to the integrity of the statute. As was said in McManus’ case, supra, the statute “must receive such reasonable construction as will effectuate its purpose.” State v. Harrison, supra, is overruled. In trials for this offence it should be borne in mind that the guilty intent is the intent to carry the weapon concealed, and does not depend upon the intent to use it. The object of this statute is not to forbid the carrying of a deadly weapon for use, but to prevent the opportunity and temptation to use it arising from its concealment. If the weapon is carried for *855 lawful use, or even for unlawful use, the defendant would not be guilty under this section if the weapon is carried openly, since this statute applies not to the act of carrying the weapon or the purpose in carrying it, but to the manner of carrying it. No Error.