Tipler v. State

Campbell, J., delivered the opinion of the court. The instruction to the jury, given at the request of the district attorney, is erroneous in assuming, upon a state of facts recited by it, that the defendant had not sufficient reason to apprehend an attack. This was an invasion of the province of the jury. It was for it to consider all the evidence, and determine whether the defendant was threatened with an attack or had good and sufficient reason to apprehend one, and was carrying the pistol he had on his person partly concealed because of such reasonable apprehension, and as a proper precaution for his protection against such threatened attack. If such was the case, he was not within the prohibition of the statute; but, if he had no sufficient reason to apprehend an attack, he could not shield himself from the penalty of the law because of some threat made against him, unless it -was made by a person and under circumstances which the jury should consider sufficient to cause the defendant justly to apprehend that there was such danger of being attacked as to make it proper to bear arms in self-defence at the time he is shown to have done so. The expression in the statute “ being threatened ” is used in the sense of being so circumstanced as to be made to apprehend an attack against which one might lawfully defend himself by the use of a deadly weapon. The term “ threatened ” in the statute does not mean that a mere denunciation [688] of evil will license the person denounced, to cany concealed weapons. The person excepted from the prohibition of the statute is one so menaced as to have good reason to believe that he is in danger of an attack from which he may properly defend himself by the character of weapon he carries concealed. The statute permits one justly apprehensive of attack to provide against it by carrying weapons concealed, but apprehension must not be simulated or too easily excited ; and idle threats, the ebullition of passion, or the offspring of intoxication, which import no serious danger, must not be made a pretext for carrying concealed weapons, which is permitted only to him who has “ good and sufficient reason to apprehend an attack.” It is for the jury to determine from the evidence whether the accused carried the weapon because of apprehension justly and honestly entertained of danger of attack, or whether the apprehension of an attack, claimed as a justification for carrying a weapon concealed, is founded on good and sufficient reason, or is made a pretext for a violation of the law. The vice of the instruction we have pronounced to be erroneous is that it announces as a legal conclusion, in effect, that the accused could have no good and sufficient reason to apprehend an attack from Sherold, if the latter was and continued to be a brakeman on the Memphis and Charleston Railroad, making two trips a week from Burnsville to Memphis, and the accused lived fifteen miles from this railroad, and was carrying the weapon concealed seven or eight miles from the railroad. Certainly, if Sherold should not depart from the railroad, and the accused should not go to it or near it, there would be no danger of collision between them, but it may be true, so far as the evidence shows, that Sherold continued a brakeman, and made two trips a week from Burnsville to Memphis, and yet, he might, on the fourth of July, have been at Wolf’s Spring, a distance of seven or eight miles from the railroad, on which he made two trips a week, as stated. It should have been left to the jury, under instruction as to the principles of law to guide them, to say whether the accused was menaced with harm, and had good reason to believe himself in such danger of attack on July 4,1879, as to excuse him for having con [689] cealed on his person a pistol at Wolfs Spring. It is not to be supposed that tire jury would have failed to make the proper response to the inquiry. The instruction asked by the accused was properly refused, because it contains the idea, repudiated in this opinion, that, if the accused had been threatened with an attack, he had the right to carry a weapon concealed. A declaration of intention to do some harm to another, which is the ordinary meaning of a threat, often signifies very little, and, as before stated, it is not of a threat, in this sense, that the statute speaks. That one has been threatened by another with bodily harm does not in itself license the person threatened to carry a weapon wholly or partly concealed. To justify it, he must, in the opinion of the jury, have good and sufficient reason to apprehend an attack, and must be carrying the weapon charged as a precaution against it, and must not carry it at a time or place or under circumstances in which he could not have sufficient reason to apprehend an attack, of all which the jury trying the case is to determine, as a question of fact. Judgment reversed and neto trial awarded.