
    Smith v. The State.
    Criminal Law. — Carrying Concealed Weapons. — In a prosecution for carrying concealed weapons, the evidence showed that the defendant was watching a watermelon patch, which had been previously depredated, until her father and brother should return from a school meeting to which they had gone ; that she took a revolver from the house with her, carrying it in her hand, in the box in which it had been purchased; that, while at the melon patch, she heard her father and brother coming home and some men following them, threatening to heat her brother ; that she took the revolver from the ground where it had been lying, and, carrying it in her hand, went to her brother’s rescue and succeeded in getting him away from the men ; that the revolver was at no time concealed, unless it was when the defendant folded her arms at the scene of disturbance.
    
      Held, that the evidence does not make a ease against the defendant for carrying concealed weapons.
    From tbe Huntington Circuit Court.
    
      J. B. Kenner, for appellant.
    
      T. W. Woollen, Attorney General, and C. W Watkins, Prosecuting Attorney, for the State.
   Scott, J.

Indictment for carrying concealed weapons. The defendant pleaded “ not guilty.” The cause was submitted to the court, a jury having been waived. Finding of guilty, and fine of one dollar was assessed. Motion for a new trial. Motion overruled and exception. Error assigned is on the overruling of the defendant’s motion for a new trial.

The following is the evidence in full as we find it in the bill of exceptions:

John Enoch, a witness in behalf of the-State, was sworn, and testified as follows :

“ I was present at the trouble at Belleville. I saw Margaret Smith have a revolver. The first I saw of it was when it dropped to the ground. It dropped from her somewhere. She then got it and had it in her hand, and would fold her arms, and then it was under her clothes. This occurred at Belleville, in Huntington county, State of Indiana, September 1st, 1879.”

On cross-examination he said :

“ It was dark, about 9 o’clock at night. I was not threatening her brother; there were some others following her brother William.”

John Neff, being sworn, testified as follows :

“I was at the school-house about September 1st, 1819. I saw Margaret Smith have a revolver. She had it in her hand when I saw it. Some of the crowd tried to get it from her, and it dropped. She got it and flourished it; when she had it in her hand, she would fold her arms and then it was under her cloak.”

On cross-examination he said :

“ I did not see it taken from her pocket. She had it in her hand.”

Jacob Neff' sworn : “ I was not there, and know nothing about the matter. I did not hear the defendant say anything about it.”

This was all the evidence on the part of the State, and the defence offered the following testimony :

Margaret Smith was duly sworn and testified as follows:

“ On the evening of September 1st, having been informed that apai’ty of persons were intending to rob and destroy our melon patch that evening, (it had been robbed a short time before,) my father and brother William had gone to a school meeting, and my mother and myself went into the melon patch to watch until the men came home. There w'as a revolver in the house, and I picked it up in the paste-board box it was bought in, and carried it in my hand to the melon patch and set it on the ground. The lid was off. We staid there until the school meeting was over, and then we heard a crowd of men following, cursing and threatening William. It was only a short distance away. My mother was afraid that the crowd would hurt or kill William, as they had a grudge against him, and wanted me to go over with her and help to get William away. I did not want to go, but mother insisted, and I picked up the revolver from the ground, put it in the box, and we went over to where William was. When we got near enough to see, we saw one had a club over him, with clubs over William and threatening to strike him ; I had then taken the revolver out of the box, and had it in my hand. I wanted the crowd to see it. I thought they might then give back, and we could get William away. William saw the revolver and asked me to give it to him. lie was then held by one of the crowd. I refused to give the revolver to him, for I know he was angry and might hurt some one. I only wanted to frighten the crowd back and get brother away. John Enoch said, ‘ Don’t you shoot; there are two revolvers in our crowd, and if you shoot we will.’ Just then some one of the crowd sprang at me and tried to get the revolver away from me, and we struggled for it, aud it was dropped, but I succeeded in getting it first. I then held it in my hands, and advanced to where they had William, and the crowd fell back, and I got William away from them, and we went home. I d d not at any time have the revolver concealed about my person. I carried it in my hand in the box to the field, and, when I went to help my brother, I took it out of the box and had it in my hand. I did not expect to shoot or hurt any one. When I went to the road, I had the revolver enclosed in the box.”

Jane Smith sworn : “ I was with my daughter as she states. Wew.enttothe melon patch to watch it. My daughter took the revolver in her hand to the melon patch in the box. We heard the ruffians swearing and threatening my son William, and we went over to get him away. She picked the revolver up off the ground, and carried it over in her hand. I don’t know whether the lid was on th-e box or not when we went over, but she had box and all in her hand, and, when we reached the road, we saw twenty or thirty men following William-. Margaret took the revolver in her hand when we came to the road, and had it in her hand all the time until we left. Margaret had no pocket in which she could conceal it. When we reached the road where William was, several persons had clubs in their hands threatening to strike William, and one of them tried to get the revolver, and knocked it out of her hand, but in the struggle she succeeded in getting it. Margaret then ran toward William, and the crowd left, and we all went home.”

Jacob Smith sworn testified as follows: “Myself and son were coming from the school meeting, and a crowd of men, (these prosecuting witnesses were in the crowd,) followed William Smith and myself. They threatened to beat William, and cursed and swore very loudly. My wife and daughter Margaret heard the loud talk and came over, (it was only a short distance,) and tried to get William away from the crowd. She had a revolver in her hand when I saw her. She was trying to get William away.”

The statute is as follows : “ That every person not being a traveller, who shall wear or carry any dirk, pistol, bowie-knife, dagger, sword in cane, or any other dangerous or deadly weapon concealed, or who shall carry or wear any such weapon openly, with the intent or avowed purpose of injuring his fellow man, shall, upon conviction thereof, be fined in any sum not exceeding five hundred dollars.”

We are of opinion that the evidence does not make a case against the appellant for carrying concealed weapons.

The judgment is reversed; cause remanded, with instructions to the circuit court to sustain the motion for a new trial, and for further proceedings.  