
    William Jordan v. State of Mississippi.
    [39 South. Rep., 895.]
    Ckiminai. Daw. Carrying concealed weapons. ' Code 1892, §§ 1026, 1027. • Affidavit. Indictment. Requisites of.
    
    An indictment or affidavit for carrying a concealed weapon, under Code 1892, §§ 1026, 1027, prohibiting the carrying of deadly weapons concealed by persons other than certain excepted ones, is fatally defective if it fail to charge that the weapon was “unlawfully” carried.
    From the circuit court of Lee county.
    Hon. Eugene O. Sykes, Judge.
    Jordan, the appellant, was charged with and tried and convicted, in a justice of the peace’s court, for carrying a deadly weapon concealed, and appealed to the circuit court, where he was again tried and convicted, and thence appealed to the supreme court. The material point of the affidavit upon which the prosecution was based is set out in the opinion of the court.
    
      L. P. Haley, for appellant.
    The affidavit is defective in that it does not charge an “unlawful” carrying.
    
      P. V. Fletcher, assistant attorney-general, for appellee.
    The affidavit sufficiently charges the crime under the statute.
   Oali-ioon, J.,

delivered the opinion of the court.

The affidavit on which this prosecution is based is that the defendant “did carry á certain deadly weapon — to wit, a pistol —concealed on his person, against the statute in such cases made and provided and against the peace and dignity of the state of Mississippi,” omitting the word “unlawfully.” The affidavit is fatally defective. It is entirely lawful to carry a pistol in some instances, and tbe failure of tbe affidavit to charge that it 'was unlawfully done is a fatal defect. It charges no offense, and perjury could not be sustained against any witness who might testify falsely in the case. Henry v. State, 33 Ala., 389; Perry v. People, 14 Ill., 496; Greer v. State, 50 Ind., 267 (19 Am. St. Rep., 709); Scudder v. State, 62 Ind., 13; State v. Whitaker, 85 N. C., 568. Our state has been strict in requiring a valid charge against the citizen. Louisville R. Co. v. Pool, 72 Miss., 490 (16 South. Rep., 753); Riggs v. State, 26 Miss., 51. The affidavit was not asked to be amended by the state.

Reversed and remanded.  