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[Cite as Smith v. State, 79 Ala. 257 (1885).]



1. Former acquittal, or conviction; continuous offense.--Carrying a weapon concealed about the person (Code, 4109), is necessarily an act continuous in its nature; and where it appears that the defendant, while visiting a neighboring plantation, and inviting the residents to a dance, exhibited a pistol at two houses some fifty or sixty yards apart, and has been tried and convicted (or acquitted) on the testimony of the persons at one of the houses, he can not be again prosecuted on the testimony of the persons who saw him at the other house.

From the County Court of Macon.

Tried before the Hon. P. S. Holt.

The prosecution in this case was commenced by an affidavit made by Amanda Brown, on the 16th February, 1885, which charged, "that John Smith carried a pistol concealed about his person, and that said offense was committed in said county of Macon." On the trial, as the record and bill of exceptions show, the defendant having pleaded a former acquittal, on which plea issue was joined, he introduced in evidence the record of a former acquittal, and the affidavit on which it was founded. That affidavit was made by Eli Butler, on the 27th December, 1884, and charged the offense in the same words as the affidavit in this case; and the judgment of acquittal, on verdict of not guilty, was rendered on the 16th February, 1885, and was in all respects formal. "The defendant then proved by Eli Butler and Dave Spencer, that they were subpoenaed as witnesses in said case against the defendant at the last term, and were examined as witnesses on the trial, and testified as follows: that the defendant, on Friday of last Christmas week, came to the plantation of E. T. Varner, where all the witnesses lived, and went from house to house inviting the people who lived there to a party to be given by him; that they met the defendant at the house of one Bill Foote, on said place, and saw him take from his pocket a pistol which was before concealed from observation; and said witnesses were now present at this term of the court, having been subpoenaed for the State as witnesses, on the charge preferred by Amanda Brown. The defendant then introduced said Amanda Brown and one John (p.258)Moore, who testified, that they also were subpoenaed as witnesses for the State in said prosecution against the defendant at the last term, but were not examined on the trial; that they had been again subpoenaed, and were now present as witnesses for the State on the pending charge; that the defendant came to the Varner place, on said Friday of last Christmas week, to invite the people to a party; that he came to the house of said Amanda, and remained there about half an hour; that they there saw him take from his pocket a pistol, which was before concealed, and put it back in his pocket; and that he then went immediately to the house of Bill Foote, which was about sixty yards distant from said Amanda's house, where said Butler and Spencer had testified they met him. It was proved, on the part of the State, that the present prosecution was founded on the testimony of said Amanda Brown and John Moore; and that on the trial at time last term, the evidence was, on the defendant's motion, confined to Bill Foote's house, where said witnesses testified to defendant's having the pistol." On this evidence, the court charged the jury as follows: "There is nothing necessarily continuous in the offense of carrying concealed weapons, and a man may be tried and convicted of carrying a concealed weapon twenty times a day, if he exhibits it at so many different places." The defendant excepted to this charge, and requested the following charge in writing: "If the evidence shows that the defendant exhibited the pistol at the house of Amanda Brown, and went from there, in a very short time, to the house of Bill Foote, only sixty yards distant, and there again exhibited the same pistol, the weapon each time being taken from a place of concealment on his person; and that all this occurred on the same day; and that the defendant was tried and acquitted on the charge of carrying a pistol concealed on his person at the house of Bill Foote,--then they must find for the defendant." The court refused to give this charge, and the defendant excepted. Under these rulings of the court, the jury found the issue against the defendant; and issue being then joined on the plea of not guilty, he was convicted on the testimony of Amanda Brown and John Moore, substantially as above set forth.

Thos. N. McClellan, Attorney-General, for the State.

STONE, C. J.--Defendant was prosecuted for carrying a pistol concealed about his person under section 4109, as amended by act approved February 19, 1881.--Sess. Acts, 38. To carry, in this statute, means "to convey, bear, or transport, by sustaining the thing carried, or causing it to be sustained." Worcester's Dictionary. We think that, ex vi termini, it is (p.259)continuous in its nature, and that the two alleged acts shown in the proof, amount to no more than one continuous act of carrying.--Owens v. The State, 74 Ala. 401. Any other interpretation would furnish no rule for determining into how many indictable offenses one act of continuous carrying could be subdivided.

Reversed and remanded.