Summary
construing Delaware concealed weapons statute as applying in the defendant's home
Summary of this case from State v. BrinkleyOpinion
10-05-1923
STATE v. GAGLIOTA.
Clarence A. Southerland, Deputy Atty. Gen., for the State. J. Frank Ball and Philip L. Garrett, both of Wilmington, for defendant.
Fortunato Gagliota was indicted for carrying a concealed weapon. Case tried, and jury instructed.
Indictment for carrying concealed a deadly weapon, No. 215, May term, 1923.
RODNEY, J., sitting.
Clarence A. Southerland, Deputy Atty. Gen., for the State.
J. Frank Ball and Philip L. Garrett, both of Wilmington, for defendant.
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 phraseology 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.