Willis v. State

32 S.E. 155, 105 Ga. 633, 1898 Ga. LEXIS 685

• Court: Supreme Court of Georgia
• Decided: October 13, 1898
• Status: Published

Opinion

Lumpkin, P. J.

This case presents for decision a single question, viz., whether or not the evidence warranted a conviction under section 341 of the Penal Code, which declares: -“Any person having or carrying about his person, unless in an open manner and fully exposed to view, any pistol, dirk, sword in a cane, spear, bowie-knife, or any other kind of knives manufactured and sold for the purpose of offense and defense., shall be guilty of a misdemeanor.” The preceding official report sets forth all the evidence, as well as the statement of the accused.

We have no difficulty in holding that the jury were warranted in finding that the pistol which the accused was charged with carrying unlawfully was in the satchel at the time he was arrested in the car. This being so, the naked question for decision is, does a man violate the abo.ve-quoted section of our Penal Code by concealing a pistol in a traveling-bag or satchel, placing the receptacle by his side upon a seat in a railway-car, and attaching it to his person by means of a strap thrown over his shoulder? We think this question is answered in the affirmative by the decision of this court in Boles v. State, 86 Ga. 255, in which it was ruled that it was not essential to a violation of the statute “for the weapon to be concealed in the clothing of the person, but the same result is accomplished by carrying it in a basket or bag upon the arm a.nd not for transportation alone.” In Crawford v. State, 94 Ga. 774, a doubt was intimated whether, by the use of the words, “and not for transportation alone,” this court intended to express the view that carrying a pistol concealed in a basket or bag for transportation only would not be a criminal offense. Be this as it may, the question whether or not having or carrying about the person in a satchel, “for transportation alone,” a pistol not exposed to view is in violation of section 341 of tlie Penal Code, is nowhere made in the present case. There is nothing, either in the evidence or in the statement of the accused, tending to show that he set up or relied upon any such defense, and it does not appear that the trial judge, in charging or in refusing to charge, in any manner dealt with the question just stated. The case was argued here by briefs. There is no contention in the brief filed by cqunsel for the plaintiff in error that the accused should have been acquitted upon the idea that he was carrying the pistol “for transportation alone.” The only points insisted upon in that brief were, (1) that the accused did not have the pistol “ about his person,” even conceding he had placed it in his satchel; and (2) that the evidence failed to show the pistol was in fact in the satchel while in the possession of the accused. It would therefore be improper for this court to undertake now to decide ■whether or not it would be penal for a person to carry a pistol concealed in a satchel when it affirmatively appeared that his only purpose in so doing was to convey the weapon from one place to another. Accordingly we simply hold that, on the facts appearing in the record before us, a conviction was warranted. In support of our present decision, see State v. McManus, 89 N. C. 555; 5 Am. & Eng. Enc. of Law (2d ed.), 733, and authorities cited in note 1.

Judgment affirmed.

All the Justices concurring.