Opinion
June Term, 1850.
JUDGES PRESENT. Smith, Field, Leigh, Lomax, Thompson.
A jury may well find a habitual or general wearing of concealed weapons, from evidence that the defendant was seen once wearing concealed weapons under circumstances which satisfies them it was his general practice.
At the October term 1847, of the Circuit court of Albemarle county, William R. Hicks, a constable of the county, was indicted for habitually and generally carrying about his person concealed weapons.
On the trial the Commonwealth introduced two witnesses, one of whom proved that on meeting Hicks in the public road, in order to induce the witness, who was a youth, to surrender to him the horse of his father, which he was riding, and on which Hicks wished to levy an execution, he drew out a pistol and dirk, which had been before concealed about his person. The other witness, though he did not see the defendant have weapons about his person, stated facts from which it might be supposed that the defendant did have weapons concealed about his person at the time of which he spoke.
This being all the evidence, the defendant moved the Court to instruct the jury, that the evidence was insufficient to warrant a verdict of conviction under the law prohibiting the carrying of concealed weapons, passed the 2d day of February 1838. But the Court refused to give the instruction; and told the jury that the law had not prescribed any particular number of times or occasions on which a party must be seen wearing concealed weapons, to constitute the offence of habitually or generally keeping or carrying about his person concealed weapons, and to make a party guilty of a violation of the law; but it was for them to consider whether the evidence was sufficient to constitute a case for conviction. And that under certain circumstances, a jury might well find a habitual or general wearing of concealed weapons, from evidence that he was seen even once wearing of concealed weapons, and much more so, if the evidence in this case should satisfy them of his having been seen wearing them on two different occasions, under circumstances which satisfied them it was his general practice. To the opinion of the Court refusing the instruction asked, and to the instruction given, the defendant excepted.
The jury found the defendant guilty, and assessed his fine at fifty dollars; and the Court rendered a judgment upon the verdict; whereupon the defendant applied to this Court for a writ of error, which was allowed.
The judgment is affirmed.
dissented.