Hathcote v. State

Hemingway, J. 1. Right of mail carrier to carry weapons. Engagement in the service of the federal government implies no license to violate State laws; and a crime against the State is not excused by the fact that the criminal was, at the time, though not in the act, of its commission, engaged in such service. No such doctrine is found in Neagle’s case, for it only holds that what the federal government enjoins as a duty the State cannot punish as a crime. In re Neagle, 135 U. S., 1. It by no means follows that if a federal officer, while engaged in his employment, does some independent act in violation of State laws, he may not be held to answer for it. Tne defendant shows no authority from the federal government empowering him as a mail carrier to carry weapons ; and we think the fact that he was a mail carrier affords no justification for the act, in the absence of such authority. State v. Barnett, 34 W. Va., 74; S. C., 11 S. E. Rep., 735. 2. What is a journey ? But the defendant insisted that he was upon a journey when he carried the weapon, and therefore not liable to indictment; upon this defense he submitted instructions that were refused, and the court gave an instruction to which he excepted. Out of this arises the only other matter involved in the appeal. The statute prohibits the carrying of weapons, but excepts from its operation “all persons when upon a journey.” The alleged error in the court’s charge relates to what constitutes a journey within the meaning of the exception. In its original acceptation a journey was a day’s travel, but in use it has attained a broader though less definite meaning. As generally understood it signifies travel to a distance from home, and it is not used in reference to travel in one’s neighborhood or among one’s immediate acquaintances. The statute intends to prohibit the practice of carrying weapons when unnecessary and harmful, but to tolerate it in particular cases as necessary to defense; and such necessity is supposed to exist to persons when on a journey. This implies that such persons are then exposed to probable perils from which otherwise they are exempt, and in defining its scope the exception should be as broad as the reason for it, but not broader. Persons traveling within the circle of their general acquaintance are supposed to be within its protection, and exempt from perils of the highway to which they are exposed when they pass beyond it. So, within the circle of their general acquaintance they are held not to be on a journey, while beyond it they are on a journey. Smith v. State, 3 Heisk., 511; Davis v. State, 45 Ark., 359; Wilson v. State, 68 Ala., 41; Burst v. State, 89 Ind., 133. When one within contemplation of the statute is protected by his general acquaintance, and therefore prohibited from carrying a weapon, and when he passes beyond the protection of such acquaintance so. that he may carry defensive weapons, are questions in most cases for the jury upon a proper charge. And while the circumstances proved in some cases may be so plain as to justify a charge that they come within one rule or the other, we do not think such charge justified where the defendant was traveling a distance of thirty miles from one county site to another, carrying the mail, although he made the trip one way daily. In this case the court in effect charged the jury that if the defendant was going from one definite place to another in the regular routine of his daily business, he was not upon a journey. As a general thing the routine of a man’s daily business is within the circle of his immediate acquaintance, and does not extend beyond the protection which acquaintance is supposed to afford the traveler; it is therefore in most cases a proper test of the right to carry a pistol. But it fails as a test where one in the ordinary routine of his daily business passes hurriedly along, is not brought in contact with the people, and has no general acquaintance among them. One carrying mail between distant points is not necessarily brought into intercourse with the people along his route, and •may be as much a stranger to them, though he make the trip •daily, as if his business employed him at a remote place. Why, therefore, should the simple fact that he daily passes upon the highway deny him the right to carry defensive weapons, which the law deems necessary and proper for strangers? His neighbors, whose business does not call them upon the highway, have the privilege; why should he, who is protected no more by general acquaintance than they, be denied it? According to the law as charged, a resident of the same town as the defendant, whose regular routine of daily business did not call him to Sheridan, would be upon a journey while going to that place, while the defendant would not be, though no more acquainted along the route than they, because he made the trip daily. There is nothing, as we think, in the reason or policy of the act to justify this distinction, and while we cannot state an unbending rule by which to define the scope of the exception, it should in every case be interpreted in the light of .good sense and with regard to the spirit and intent of the statute. The prohibition was designed to stop the carrying of weapons on the streets, in society, and among one’s habitual associates; the exception was designed to permit it when necessary to defend against perils of the highway to which strangers are exposed and that are not supposed to •exist among one’s own neighbors. We think the charge given made the test of defendant’s right to carry a weapon too narrow, and excluded from the consideration of the jury •evidence tending to establish a valid defense. Reverse and remand.