State v. Gagliota

New York Court of General Session of the Peace

State v. Gagliota

123 A. 183, 32 Del. 360, 2 W.W. Harr. 360, 1923 Del. LEXIS 37

CourtNew York Court of General Session of the Peace

DecidedOctober 5, 1923

DocketNo. 215

StatusPublished

Cited by1 cases

This text of 123 A. 183 (State v. Gagliota) is published on Counsel Stack Legal Research, covering New York Court of General Session of the Peace primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Gagliota, 123 A. 183, 32 Del. 360, 2 W.W. Harr. 360, 1923 Del. LEXIS 37 (N.Y. Super. Ct. 1923).

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Opinion

Rodney, J.,

charging the jury:

In this case the defendant, Fortunato Gagliota, of the city of Wilmington, is charged in this indictment with having, on the 22d day of April, in the present year, unlawfully carried concealed a deadly weapon upon or about his person, other than an ordinary pocket knife. The indictment is laid under a statute of this state which provides that “whoever shall carry concealed a deadly weapon upon or about his person, other than an ordinary pocket knife, shall be deemed guilty of a misdemeanor,” and shall be punished as the law then provides.

I have been asked to instruct you to return a verdict of “not guilty,” because the testimony of the carrying of the concealed deadly weapon is confined to the fact that it was so carried in the dwelling house of the defendant. This I decline to do. The offense charged in the statute is carrying the weapon concealed about his person. The statute is general in its terms as to locality, and there is no provision excepting the defendant’s house or other place. While the question has not heretofore arisen in this state, the courts of other jurisdictions have passed directly upon it. From the almost uniform current of the law, I am convinced that unless there is an exception in the statute, it is no defense that the weapons were carried only in the defendant’s own house and that it is not the province of the court to restrict or change the phrase[362]*362ology of the statute. People v. Demorio, 123 App. Div. 665, 108 N. Y. Supp. 24; Carroll v. State, 28 Ark. 99, 18 Am. Rep. 538; Dunston v. State, 124 Ala. 89, 27 South. 333, 82 Am. St. Rep. 152; Brown v. State, 114 Ga. 60, 39 S. E. 873; State v. Venable, 117 Mo. App. 501, 93 S. W. 356; Harman v. State, 69 Ala. 248; Dycus v. State, 6 Lea (Tenn.) 584.

(The court also gave the usual charge as to presumption of innocence and reasonable doubt.)

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Rodney, J.,

charging the jury:

In this case the defendant, Fortunato Gagliota, of the city of Wilmington, is charged in this indictment with having, on the 22d day of April, in the present year, unlawfully carried concealed a deadly weapon upon or about his person, other than an ordinary pocket knife. The indictment is laid under a statute of this state which provides that “whoever shall carry concealed a deadly weapon upon or about his person, other than an ordinary pocket knife, shall be deemed guilty of a misdemeanor,” and shall be punished as the law then provides.

I have been asked to instruct you to return a verdict of “not guilty,” because the testimony of the carrying of the concealed deadly weapon is confined to the fact that it was so carried in the dwelling house of the defendant. This I decline to do. The offense charged in the statute is carrying the weapon concealed about his person. The statute is general in its terms as to locality, and there is no provision excepting the defendant’s house or other place. While the question has not heretofore arisen in this state, the courts of other jurisdictions have passed directly upon it. From the almost uniform current of the law, I am convinced that unless there is an exception in the statute, it is no defense that the weapons were carried only in the defendant’s own house and that it is not the province of the court to restrict or change the phrase[362]*362ology of the statute. People v. Demorio, 123 App. Div. 665, 108 N. Y. Supp. 24; Carroll v. State, 28 Ark. 99, 18 Am. Rep. 538; Dunston v. State, 124 Ala. 89, 27 South. 333, 82 Am. St. Rep. 152; Brown v. State, 114 Ga. 60, 39 S. E. 873; State v. Venable, 117 Mo. App. 501, 93 S. W. 356; Harman v. State, 69 Ala. 248; Dycus v. State, 6 Lea (Tenn.) 584.

(The court also gave the usual charge as to presumption of innocence and reasonable doubt.)

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Bluebook (online)

123 A. 183, 32 Del. 360, 2 W.W. Harr. 360, 1923 Del. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gagliota-nygensess-1923.

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