Earhart v. State

Campbell, J., delivered the opinion of the court. We must hold, either that the legislature, in amending § 2985 of the code by an act approved March 9, 1888, nullified the section by making it senseless and uncertain, so as to be unenforceable, or that it committed a clerical mistake in striking out two words more than was intended, viz : the words “ an attach.” The latter is the more probable, and to read the section as amended, retaining those two words, will accomplish what was manifestly the legislative purpose, and leave the law in force. We, therefore, adopt that view, and under it the section as amended will be read, “ any person, not being threatened with an attack, .... who carries concealed, etc.” It is true that an attack may be threatened by both persons and things, but no one could fail to understand that the attack against which one may arm himself and carry a weapon concealed is one by a person, in contemplation of the statute. The appellant should have been permitted to prove all that Tuttle had said indicating a threatened attack on him, and it should have been left to the jury to say whether or not he was threatened with an attack. Reversed and remanded.