{ "id": 8697093, "name": "STATE v. FILLMORE ERWIN", "name_abbreviation": "State v. Erwin", "decision_date": "1884-10", "docket_number": "", "first_page": "545", "last_page": "550", "citations": [ { "type": "official", "cite": "91 N.C. 545" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "90 N. C., 783", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "89 N. C., 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683459 ], "opinion_index": -1, "case_paths": [ "/nc/89/0555-01" ] }, { "cite": "87 N. C., 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696746 ], "opinion_index": -1, "case_paths": [ "/nc/87/0527-01" ] }, { "cite": "90 N. C., 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698777 ], "opinion_index": 0, "case_paths": [ "/nc/90/0733-01" ] }, { "cite": "81 N. C., 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8695498 ], "opinion_index": 0, "case_paths": [ "/nc/81/0548-01" ] }, { "cite": "73 N. C., 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689828 ], "opinion_index": 0, "case_paths": [ "/nc/73/0269-01" ] }, { "cite": "87 N. C., 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696697 ], "opinion_index": 0, "case_paths": [ "/nc/87/0526-01" ] }, { "cite": "89 N. C., 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683459 ], "opinion_index": 0, "case_paths": [ "/nc/89/0555-01" ] }, { "cite": "87 N. C., 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696746 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/87/0527-01" ] } ], "analysis": { "cardinality": 455, "char_count": 9056, "ocr_confidence": 0.54, "pagerank": { "raw": 6.377165668361142e-08, "percentile": 0.3905252777285471 }, "sha256": "0e25c255bfa85230161b7477b5d65473361a3ff8e4355922fc69ba246c3e383f", "simhash": "1:48959678daa8172e", "word_count": 1592 }, "last_updated": "2023-07-14T20:07:30.396726+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE v. FILLMORE ERWIN." ], "opinions": [ { "text": "M\u00e9rrimos, J.\nThe defendant was indicted for a violation of the statute, The Code, \u00a7 1005. It is charged in the indictment, that he \u201c did unlawfully and wilfully carry con-bealed from sight about his person a deadly weapon, to-wit, a certain butcher\u2019s knife, contrary,\u201d &c.\nIt was in evidence on the trial that the defendant \u201ccarried concealed about his person a butcher\u2019s knife eleven inches long, with a sharp pointed and sharp edged blade six inches long and one-fourth, (this, as was said in the argument, ought to be one and one-fourth) inch wide.\u201d\nThe court instructed the jury, \u201cthat a butcher\u2019s knife of the kind described by the witness was a deadly weapon within the meaning,\u201d of the statute cited above, \u201cand that if they were satisfied beyond a reasonable doubt that defendant while off his own premises, and not being an officer, &c.. carried concealed about his person with a criminal intent such a knife as the one described by the witness, he would be guilty.\u201d To this instruction the defendant excepted.\nThe words of the statute to be considered here are, \u201cshall carry concealed about his person any pistol, bowie knife, dirk, dagger, slung-shot, loaded cane, brass, iron or metallic knuckles, or razor, or other deadly weapon of like kind,\u201d &c.\nOn the argument the counsel for the defendant, while admitting that a \u201cbutcher\u2019s knife\u201d is a deadly instrument, insisted that it is not mentioned in the statute, nor is it of \u201c the like kind \u201d with those mentioned, and, therefore the statute does not embrace such deadly weapon, and it is not indictable to carry it as the owner may see fit to do.\nThis^is not, in our judgment, a proper interpretation -of the meaning of the statute. It is plainly its general' purpose to prohibit and prevent the carrying of deadly weapons concealed about the .person for purposes offensive and defensive, and thus protect individuals against sudden, unexpected, dangerous and perhaps deadly violence inflicted with weapons, that the assailing party has concealed in some way, on, about, or conveniently near to his person, and which he may use under sudden impulse, or deliberately and unfairly against one taken unawares; and further to conserve the public peace and safety.\nIts particular provisions all tend to support the same purpose. It enumerates and designates by name several kinds of deadly weapons, most of which are used only for purposes of assault or defence ; but with a view to make it comprehensive, and take in all deadly weapons that may be safely concealed and used for such purpose, it adds the words, \u201c or other deadly weapons of like kind.\u201d This clause is very broad ; it implies any deadly weapon of like kind. Of like kind in what respect? The counsel for the defendant says, of like kind, in that, the weapon is used only for purposes offensive and defensive. That interpretation is too narrow; it would defeat in large measure the general purposes of the statute, and would not remedy the evil intended to be suppressed. A man could use a great variety of instruments \u2022 employed ordinarily for useful, practical purpose, as deadly weapons of a very fatal type; as for example, a butcher\u2019s knife, a shoe knife, a carving knife, a hammer, a hatchet, and the like; and these could be carried concealed about or near the person as readily and as easily as the things mentioned by name in the statute.\nIt seems to us that a more reasonable interpretation of the words \u201cor other deadly weapon of like kind,\u201d and one that subserves the ends sought to be attained, is that they imply, like kind in their deadly character, and in that,they are such as can be easily concealed on, about, or conveniently near to the person, and used promptly, like the weapons designated by name may be. The word hind does not mean necessarily of the same, and only of the same and like purpose ; it may just as properly and readily be taken as meaning kind' in deadliness, kind in the facility with which it may be concealed and used ; and as this meaning serves the plain purpose of the statute, and any other does not, it must be accepted and adopted as the true one.\nIt is said, however, that this interpretation is too sweeping in its scope; it would embrace small and large pocket knives, and like useful practical things that men constantly carry in their pockets and about their persons, and are more or less deadly instruments in their character. The answer to this.is, that these things are not ordinarily carried and used as deadly weapons, but for practical purposes, and the ordinary pocket knife cannot be reckoned as per se a deadly weapon; but it would be indictable to so carry them for such unlawful purpose if deadly in their type and nature. If one should carry a pocket knife, deadly in its character, as a weapon of assault and defense, he would be indictable, just as he would be if he carried a dirk or dagger.\nThe unlawful and wilful purpose is an essential quality of the offense denounced. And hence this court has held, that it was not indictable for a merchant to carry a pistol in his pocket, not caring whether it was seen or not, from one store to another to be packed with other goods. The purpose as appeared by the circumstances was so manifestly innocent, as to rebut the statutory presumption of guilt. State v. Gilbert, 87 N. C., 527. In that case the court said : \u201cTo conceal a weapon means something more than the mere act of having it where it may not be seen. It implies an assent of the mind, and a purpose to so carry it that it may not be seen.\u201d And it may be added, that the unlawful and wilful intent and purpose with which the instrument is so carried is likewise an element of the offence. State v. McManus, 89 N. C., 555; State v. Brodnax, ante, 543.\nIf any one, with the exceptions specified in the statute, is found off his own lands with such deadly weapon about his person, that is, one of the deadly weapons designated or a like one, as pointed out above, such possession would be prima facie evidence of the concealment thereof, and there would arise a presumption of fact, that he has such deadly weapon and so c'arries it wilfully and for an unlawful purpose, but this presumption may be rebutted by the party accused. Such.presumption may be slight in some cases; it would be very strong, almost conclusive in others; depending always on the character of the weapon and the circumstances under which it shall be carried. One person might carry a pistol concealed from view in his pocket, as was done in the case of State v. Gilbert, supra, and the circumstances would rebut the presumption of guilt; another might carry a dirk or dagger concealed about his person off his own land to a church or political assembly, in which case the presumption of a purpose to violate the statute would be very great, almost conclusive. The case of the State v. Woodfin, 87 N. C., 526,- seems to have been one of the latter kind. The facts in evidence on the trial in that case were not sent up as they ought, to have been. The court could only see from the record, that the defendant went hunting with a pistol in his pocket, or concealed on his person, and it said, these being the facts appearing from inference, \u201c he was clearly guilty of a violation of the statute.\u201d\nA person who carries a deadly weapon off his own land, concealed about his person, is not necessarily and at all events guilty of a violation of the statute; he must do so wilfully and of purpose; the presumption is against him,, but he may rebut this by proper evidence.\nThe statute under consideration does not provide in terms that the acts forbidden by it must be done unlawfully and wilfully, but this is implied in this, as in like statutes. State v. Simpson, 73 N. C., 269; State v. Parker, 81 N. C., 548; State v. Allison, 90 N. C., 733.\nThere is no error, and the judgment must be affirmed. Let this opinion be certified to the superior court, to the end that that court may proceed according to law. It is so-ordered.\nNo error. Affirmed.", "type": "majority", "author": "M\u00e9rrimos, J." } ], "attorneys": [ "Attorney-General, for the State.", "Messrs. Jones & Ha/rdwieke, for defendant." ], "corrections": "", "head_matter": "STATE v. FILLMORE ERWIN.\nConcealed, Weapon \u2014 Butcher\u2019s Knife.\n1. The aet of assembly making it indictable for one to carry concealed about his person any \u2018 \u2018pistol, bowie knife, razor or other deadly weapon of like kind,\u2019\u2019 embraces a butcher\u2019s knife.\n2. The words \u2018 \u2018other deadly weapons of like kind\u2019-\u2019 imply similarity in the deadly character of weapons, such as can be conveniently concealed about one\u2019s person to be used as a weapon of offence and defence.\n(State v. Gilbert, 87 N. C., 527; State v. Woodfin, lb. 526; State v. McManus, 89 N. C., 555; State v. Allison, 90 N. C., 783, and eases there cited.)\nINDICTMENT for carrying concealed-weapon, tried at Fall Term, 1884, of Buncombe Superior Court, before Shipp, J.\nThis prosecution was commenced in the inferior court, and from the judgment pronounced upon a verdict of guilty, the defendant appealed to the superior court where the judgment below was affirmed, and the defendant then appealed to this court.\nAttorney-General, for the State.\nMessrs. Jones & Ha/rdwieke, for defendant." }, "file_name": "0545-01", "first_page_order": 559, "last_page_order": 564 }