State v. . Vanderburg

Pee Cubiam. There was evidence tending tó show that the defendant, while off his own premises had a pistol concealed about his person in breach of the statute. He excepted to the following portion of the instructions given the jury respecting the question of his guilt: “If the evidence is to be believed, a woman was in possession of the house, that she had it rented, and that he was not on his own premises, and he had no right to carry a pistol upon it; and if you find beyond a reasonable doubt that he had a pistol concealed on his person, or if you find beyond a reasonable doubt that he was in possession of a pistol on that occasion and find it beyond a reasonable doubt, then it would be your duty to convict.” ■ ■ Section 4410 provides that if any one not being on his own land shall have about his person a deadly weapon, such possession shall be prima facie evidence of the concealment thereof; but .the bare possession of a *715 pistol by a person not on bis own premises does not necessarily constitute a breach of the statute. This instruction entitled the defendant to a new trial on this indictment. With respect to the assault, the record discloses the following instruction: “This woman testified that be came out there and told her to get out of there by a certain time and drew his pistol on her and told her that if she did not get out at that certain time he would feed her a couple of these, meaning cartridges from the pistol. The little girl says he drew the pistol. Mrs. Green illustrates how he drew it and the little girl did the same thing; that he drew it out of his pocket and presented, it to her mother, and she illustrates how he did it. If you find this to be true, he would be guilty at least of carrying a concealed weapon, and if he made a threat to kill her, then he would be guilty- of assault with intent to kill, assault with deadly weapon.” We do not think that the several elements of the offense denounced in C. S., 4213 were sufficiently explained to the jury in view of the general verdict appearing in the record proper. New trial.