#### STATE v. G. F. SIMMONS.

(Filed March 12, 1907).

Indictment — Concealed Weapons — Exceptions—Ignorance— Good Faith — Advice—Intention—Juñes—Facts—Charge —Error—Jurors Polled — Intimation of Opinion.

1. In order to come within the exception of the statute (Revisal 1905, see. 370S) prohibiting the carrying of concealed weapons, the defendant, otherwise having the authority, must have been in the actual performance of his duties at the time.

2. A person acting in ignorance of the law in good faith and upon advice of the Clerk of the Court or of an attorney, but in violation of the statute prohibiting the carrying of concealed weapons, is not excused.

3. The intention of the defendant to conceal a 'weapon on his person is immaterial, if from his own testimony it appears that he necessarily knew that he was carrying it concealed.

*6144. Juries should not only find the facts, but they should draw their own conclusions therefrom uninfluenced by the acts or language of the Court; and the language of a charge, “if you believe the evidence, the defendant is guilty, and you will return a verdict of guilty,” is improper, though, standing alone, not reversible error.

5. It is error for the Court below, when informed by the jury in answer to his question, that some of them believed the defendant guilty and some not guilty, to poll the jury, ascertain from each that he believed the evidence, and then again instruct them, “if they believed the evidence, to return a verdict of guilty,” it being an intimation of opinion upon the facts and calculated to prevent an impartial consideration of the case.

INDICTMENT for carrying a concealed weapon, tried before Jones,, J., and a jury, November Term, 1906, Superior Court of Lenoie County. Erom verdict and judgment, defendant appealed.

Tbe defendant was indicted for carrying a concealed weapon, to-wit, a pistol. He attempted to justify upon tbe ground that be was Bird and Game Warden and entitled by Revisal, sec. 1868, to exercise all tbe power and authority of a constable at tbe common law and under tbe statutes of this State. He was not on duty when tbe pistol was found on bis person. Tbe weapon was in bis possession on tbe night in question. He dropped it from bis pocket into tbe mud, picked it up, stepped upon tbe sidewalk of South Street in Kinston and wiped it with bis handkerchief. After cleaning it, he dropped it into bis pocket. Tbe pistol was first in bis band and then in bis pocket, sometimes in view and sometimes not in view. Tbe above is taken from tbe defendant’s own testimony. He proposed to show by tbe Clerk of tbe Court that tbe latter advised him, when be took tbe oath of office, that be, being a constable, bad a right to carry tbe pistol, and that be carried it under that belief; and be also proposed to testify that “be did not intend to conceal tbe pistol.” All this testimony was excluded, and tbe defendant excepted. The evidence of tbe State tended to show that tbe *615defendant carried tbe pistol on bis person and that a part of tbe time it was concealed.

Tbe Court charged tbe jury as follows: “If yon believe tbe evidence, tbe defendant is guilty, and you will return a verdict of guilty.” Tbe jury retired and after being out a few minutes came into court, whereupon tbe Judge inquired of them what was their trouble in reaching a verdict, and they replied that some of them thought tbe defendant guilty and others thought him not guilty. Tbe Court then inquired of each juror if be believed tbe evidence, and each juror replied that be did believe tbe evidence as given on the stand; whereupon tbe Court told tbe jury again: “If you believe tbe evidence, return a verdict of guilty.” Tbe defendant excepted to each of tbe instructions. There was a verdict of guilty and judgment entered thereon. Defendant .appealed.

Attorney-General for tbe State.

Loftin & Yarser and M. II. Allen for defendant.

Walker, J.,

after stating tbe case: Tbe fact that tbe defendant was game warden at tbe time be was found with tbe pistol in bis pocket did not excuse him for carrying it concealed. Even if be was invested with tbe power and authority of a constable for all purposes, and not only to tbe extent that was necessary for tbe efficient discharge of bis official duties as game warden, it appears that be was not then in tbe actual performance of those duties. He does not, therefore, come within tbe exception of tbe statute. Revisal, sec. 3708; State v. Hayne, 88 N. C., 625; State v. Boone, 132 N. C., 1107.

Tbe advice of tbe Clerk of tbe Court, that tbe defendant bad, as constable, tbe right to carry a pistol, is equally ineffectual as a defense to this indictment. “Ignorance of tbe law excuses no man.” If be would take advice as to tbe *616criminality of a contemplated act, be must be sure that it is co'rreót, for otherwise be will be as guilty, if be does tbe act, as if be bad not taken it. State v. Boyett, 32 N. C., 336; State v. Dickens, 2 N. C., 406. Even tbe advice of an attorney learned in tbe law bas been held to be insufficient to protect bis client against a criminal prosecution for illegally voting at an election. State v. Downs, 116 N. C., 1064. Tbe rule is of general application in cases of this kind. We find it thus stated in 12 Cyc., at p. 155: “It is no defense for tbe accused to show that be believed in good faitb that tbe law which be violated was unconstitutional. Nor will it avail him that be acted in good faitb, under tbe advice of counsel; or that be is a foreigner, and that tbe act with which be is charged is not a crime in bis country,” citing numerous cases to support tbe text. There are, of course, some exceptions to tbe rule.

Defendant offered to testify that be did not' intend to carry tbe weapon concealed. Tbe criminal intent in this and in like offenses created by statute is tbe intent to do tbe forbidden act. State v. McDonald, 133 N. C., 684. Tbe statute provides that tbe possession of a deadly weapon, if carried about tbe person, shall be prima facie evidence of concealment, if tbe accused is at tbe time off bis premises. It is not necessary to a conviction that tbe State should show an intention to use the weapon for any unlawful purpose, for it is the intent to conceal and not the intent to use it in any particular way that renders the act of carrying it criminal. State v. Dixon, 114 N. C., 850; State v. Reams, 121 N. C., 556; State v. Brown, 125 N. C., 704. In this ease, the defendant himself testified that he had tbe pistol in his pocket a part of tbe time, and that it was then concealed or hidden from view. It necessarily follows, if this be true, that he knew that it was thus concealed. He has shown no valid excuse for carrying it in bis pocket “out of sight,” and tbe *617presumption of tbe statute, instead of being rebutted by the proof, as it should have been if be confidently expected an acquittal, was greatly strengthened, if not made conclusive. Upon his own statement, if found by the jury to be true, it would seem clear that the specific intent, which he proposed to prove, was, under the circumstances, altogether immaterial. He must be presumed to have intended to do that which he knowingly did. Knowledge that he was carrying the weapon concealed is equivalent, under the statute, to the criminal intent to conceal which is required by the law to exist, there being no lawful excuse for carrying it. State v. Woodfin, 87 N. C., 526; State v. Lilly, 116 N. C., 1049 ; State v. Erwin, 91 N. C., 545 ; Broom’s Legal Maxims (8 Ed.), p. 306, et seq. If the object of'the defendant was to prove that he carried the pistol in his pocket, not for the purpose of concealing it and thus violating the law, but because he believed that he had the right as an officer to carry it, the testimony was equally immaterial, for he had no such right, and the mere fact that he thought so is of no avail. Such a construction of the statute as would justify him on that ground would defeat its very purpose. As said in State v. Lilly, supra, the gist of the offense is the manner of carrying the weapon. Evidence of the intent, such as that offered by tire defendant, may be competent and relevant in some cases, but not in one of this character. Our -case is governed by State v. Dixon, 114 N. C., 850; State v. Pigford, 117 N. C., 748; State v. Brown, 125 N. C., 704.

We have often intimated that a general instruction to the jury in the form of the one given by the Court is objection•able. State v. Barrett, 123 N. C., 753; Sossaman v. Cruse, 133 N. C., 470; State v. Green, 134 N. C., 658; State v. Garland, 138 N. C., 675. Speaking of a charge identical in language with the one given in this case, Justice Henderson, in Bank v. Pugh, 8 N. C., at p. 206, said: “The nature of *618the rejection (of the bond) is an inference of fact, to be drawn from the evidence which the Judge has, improperly, drawn for himself and the jury both, leaving to' the latter only to say whether the witness swore truly or not. The jury are the constitutional judges, not only of the truth of testimony, but of the conclusions of fact resulting therefrom. It would repel the interference of juries, as far as the law will warrant', in all questions of law and, in like manner, the interference of the Judge in matters of fact.” And in Merrell v. Dudley, 139 N. C., at p. 59, Justice Ilolce thus refers to the subject: “The language is inexact, and this form of expression shoñld be eschewed by the Judges in charging juries. This Court has heretofore called attention to it in a number of cases.” We do not say that such an instruction, standing alone, will constitute reversible error, as that will depend upon the nature and circumstances of the particular case in which it is given and upon the strength of the probability that it prejudiced the complaining party. If it should clearly appear to have done so, we might deem it proper to order a new trial, but we take occasion again to express the hope that the strong and impressive words of Judge Henderson, which we have more than once quoted with approval, will be heeded, and that what we ourselves have said will have the effect of changing the form of expression and of conforming instructions moro closely to the requirement of the statute. Eevisal, sec. 636. As we reverse the judgment' on another ground, we need not further discuss this exception, as it is sufficiently considered, for the purposes of this case, in what we have already said.

When the jury returned to court, after having been out for a few minutes, the Judge inquired of them as to their trouble in reaching a verdict, and they replied that some of them thought the defendant guilty and others thought he was not guilty; whereupon the Judge polled the jury, asking each *619juror if be believed the evidence, when each replied that he did believe the evidence as given on the stand. This was not according to regular procedure or the approved precedents in such cases, if it was not a direct violation of the Act of 1796. “No Judge in giving a charge to the petit jury, either in a civil or ,a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, such matter being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon.” Revisal, sec. 535. Besides being in effect an intimation of opinion as to what the verdict should be, the inquiry of the Judge and the manner of making it were calculated to deprive the ju'ry of that freedom of thought and action which is so essential to an impartial consideration of the case and a proper discharge of their duty. Nash v. Morton, 48 N. C., 3; State v. Shule, 32 N. C., 153; State v. Whit, 50 N. C., at pp. 227 and 228. The evidénce may, in the opinion of the Court, have been ever so strong against the defendant, yet it was for the jury to find the ultimate fact of guilt without any suggestion from the Court, direct or indirect, as to what that finding should be. State v. Lilly, 116 N. C., 1049. The presumption of innocence and the doctrine of reasonable doubt require that method to be pursued, and it is clearly enjoined by the statute we have cited, the restraining words of which define clearly the respective functions of Court and jury in the trial of causes.

There must be another trial because of this error in the remarks of the Court to the jury.

New Trial.