
    Jones v. The State.
    
      Indictment for Carrying Concealed Weapons.
    
    
      Carrying concealed weapons; what constitutes. — To constitute concealment within the meaning of the statute against carrying concealed weapons (Rev. Code, § 3555), it is sufficient if the weapon be hidden from ordinary observation, although it may be seen on closer examination; and this must be determined by the jury. But, if there is any evidence tending to show that the weapon was not concealed, it is error to refuse to charge the jury, on request, that they must-acquit the defendant unless they are convinced, from all the evidence, that he did carry it concealed about his person.
    From the Circuit Court of Geneva.
    Tried before the Hon. J. McCaleb Wiley.
    The prisoner in this case was indicted for carrying a pistol concealed about his person, and pleaded not guilty to the indictment. On the trial, as the bill of exceptions states, one Bircb was introduced as a witness for tbe prosecution, wbo testified tbat, on a particular day witbin tbe period covered by tbe indictment, he walked with tbe defendant to a spring, where tbe defendant knelt down to drink; “ tbat while kneeling-down, bis coat-tail fell over behind, and witness saw tbe end of a pistol on him, and in bis rear ; that when tbe defendant got up, bis coat fell over tbe pistol, and witness did not see it any more; and tbat be did not know whether tbe pistol could have ,been seen on the defendant in front at tbe time, as be did not look for it.” Tbe defendant then introduced one Crutchfield as a witness, wbo testified tbat, on tbe day mentioned by tbe witness Bircb, be and tbe defendant bad been bunting bogs together in the woods ; “ tbat tbe defendant carried bis pistol, a portion of tbe day, by tbe belt at tbe born of bis saddle, and had it belted around him tbe rest of tbe time, so tbat tbe butt-end could be seen all tbe time in front of him; tbat be saw tbe butt-end of tbe pistol in front of tbe defendant a short time before be and Bircb started to tbe spring, but did not see it at tbe time they started, because bis attention was not called to it then.” This being all the evidence, tbe defendant asked tbe court to give tbe following instructions in writing to tbe jury : “1. If the jury are not convinced, from all tbe evidence, that tbe defendant did carry tbe pistol concealed about bis person, then they must find him not guilty, although they might also believe, from tbe evidence, tbat tbe witness Bircb only saw tbe pistol while they were at the spring. 2. If tbe jury believe, from tbe evidence, tbat tbe pistol could have been seen in front of tbe defendant, then be is not guilty, although they may also believe, from tbe evidence, tbat tbe witness Bircb did not see it while walking by bis side to tbe spring.” Tbe court refused both of these charges, and tbe defendant excepted to their refusal; and their refusal is now assigned as error.
    W. D. Roberts and F. M. Wood, for tbe prisoner.
    Ben. Gardner, Attorney General, for tbe State.
   B. F. SAFFOLD, J.

To constitute concealment, it is not necessary tbat tbe weapon may be seen from without, by inspection, or examination, more or less close; it is sufficient if it is hidden from ordinary observation ; and this must be determined by tbe jury. Of course, if the jury are not convinced of its being carried concealed, tbe defendant must be acquitted. One witness testified, that tbe pistol was strapped around tbe defendant’s waist, in such manner as to exhibit the handle of it to persons in front of him. Tbe court erred in refusing to charge tbe jury, as requested, tbat they must acquit the defendant, if they were not convinced, from all the evidence, that he did carry the pistol concealed about his person.

The judgment is reversed, and the cause remanded.  