Jordan v. State

39 So. 895, 87 Miss. 170

Opinion

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.