HAYNES v. THE STATE.

KNOXVILLE, SEPTEMBER, 1844.

Penal Statute--Construction. The maxim, qui haeret in litera, haeret in cortice, is as well applicable to penal statutes as to remedial, and although such statutes are strictly construed in favor of offenders, yet they are not construed according to the letter, but according to their spirit, for the purpose of suppressing the evil; and the protection against conviction when the words of a statute cover the charge, and its true spirit and meaning do not, rests in the judge and jury who try the case.

Concealed weapons designated and others resembling them. A statute is sufficient to sustain a conviction under an indictment in pursuance of its words, which makes it a highly penal misdemeanor to wear concealed about the person any bowie-knife, Arkansas tooth-pick, or other knife or weapon in form, shape, or size resembling them. (See Code, sec. 4746; Aymette v. State, 2 Humph., 154.)

Stephen Haynes was indicted in the circuit court, held for the county of Knox, at the February term, 1843.

The indictment charged him, 1st, with having worn a bowie-knife concealed under his clothes; and, 2d, with having worn, concealed under his clothes, a knife in size resembling a bowie-knife.

It appeared that Haynes was arrested for an affray, and, being required to give sureties for his appearance at court to answer for the offence, attempted to make his escape. In the scuffle which ensued the constable took a knife from Haynes, which was concealed under his clothes.(p.121)

Jackson said it was a large knife. It was what he called a bowie-knife. He had seen bowie-knives of different sizes, some larger and some smaller than the knife which Haynes had.

Bowen saw the knife when it was taken from Haynes. He said he took it to be a bowie-knife, and was what he had heard called a bowie-knife.

Harris said he was acquainted with bowie-knives; that bowie-knives were generally larger than the knife which Haynes had. He had seen them of different shapes and sizes; that they were used for chopping or hacking, though they might be used for thrusting; that the knife in question was what was called a Mexican pirate-knife, but that it might be said to resemble a bowie-knife, because it had a sharp point, a thick back, and a sharp edge.

Bell said he was acquainted with bowie-knives and pirate-knives; that they differ in size and shape from each other; that the bowie-knife is much the largest; that bowie-knives are made of different sizes and shapes, but are broader and heavier than the pirate-knife.

Nelson said that there was no general resemblance between the bowie-knife and a pirate-knife; that the knife which Haynes had was a pirate-knife. He never saw a bowie-knife as small as the knife in question. The pirate-knife was slim and pointed; the bowie-knife broad and heavy.

The jury, under the charge of the circuit judge, which was not set out in the bill of exceptions, acquitted the defendant on the charge of wearing a bowie-knife, but found him guilty as charged in the second count--of wearing a knife in size resembling a bowie-knife.

The defendant moved the court for a new trial, and presented in support of the motion his own affidavit, and those of others, to show that the knife in question was a Mexican pirate-knife, etc.

The motion was overruled, and defendant sentenced to imprisonment in the common jail of Knox county.

This is an indictment against Stephen Haynes, the plaintiff in error, under the act of 1837-8, ch. 137, passed to prohibit persons from wearing, under their clothes or concealed about their persons, any bowie-knife, Arkansas tooth-pick, or other knife or weapon in form, shape, or size resembling such bowie-knife or Arkansas tooth-pick. The bill of indictment contains two counts. The second, upon which the conviction took place, charges "that the defendant, with force and arms, did unlawfully wear a knife, in size resembling a bowie-knife, concealed under his clothes."

The design of the statute was to prohibit the wearing of bowie-knives, and others of a similar description, which the experience of the country had proven to be extremely dangerous and destructive to human life; the carrying of which by truculent and evil-disposed persons but too often ended in assassination. To have undertaken a war against the name of the knife, the legislature were aware would have been useless and unavailing, as it could and would have been changed for the emergency as often as legislative provisions might make it necessary; therefore it is the thing that is provided against, not the name, it being equally dangerous, either as bowie-knife, Arkansas tooth-pick, Mexican pirate-knife, aut quocunque nomine gaudet. The act, therefore, wisely provides against bowie-knives, Arkansas tooth-picks, or any other weapon in form, shape, or size resembling them. But it is argued that this is too indefinite, and that absurd consequences must follow its enforcement; for a small pocket-knife, which is innocuous, may be made to resemble in form and shape a bowie-knife or Arkansas tooth-pick, the carrying of which, under the words of the statute, would subject the offender to its penalties. To this it is to be answered that the carrying of such a knife is not within the evil intended to be remedied by the statute, and that, (p.123)though within the words, it is not within the spirit and meaning of the law; that statutes of this character, though strictly construed in favor of offenders as being highly penal, are not construed according to the letter, but according to their spirit, for the purpose of suppressing the evil, and are like the statute spoken of by Blackstone in his Commentaries, which inflicted the punishment of death upon any individual who should draw blood in the streets, which he holds by a legitimate construction not to apply to the case of a physician who should open a vein for an invalid in the streets, it not being within the spirit and meaning of the statute, though within its letter. So of the statute under consideration. The design, meaning, and intent was to guard against the destruction of human life by prohibiting the wearing heavy, dangerous, destructive knives, the only use of which is to kill; and to hold that it applied to knives used altogether for lawful purposes, and such as peaceable persons, not given to brawling and stabbing, carry in their pockets, would be a violation of sense and of every rule of construction as applicable to statutes of this kind. The maxim, qui haeret in litera, haeret in cortice, is as well applicable to penal statutes as to remedial.

But, it may be asked, what is to protect against conviction, when the words of the statute cover the charge, and its true spirit and meaning does not?

We answer, the judge and jury who try the case. We cannot presume that the latter would find, or the former permit, a verdict to stand where the offence charged was not of the character designed to be prohibited by the statute.

On the trial of the case two knives were produced; one is admitted to have been a bowie-knife, the other is called by some of the witnesses a Mexican pirate-knife. They are both shown to be heavy, deadly weapons, as the name of the latter clearly indicates; there is some difference in the shape, and the bowie-knife is the largest; the proof shows that bowie-knives are of different sizes, according to the fancy or strength of the person who may design to wield them, but all and every one of them calculated to produce death at a blow; so is the Mexican pirate-knife, which does in size resemble a bowie-knife, which it may (p.124)do without being actually as heavy or as large as a bowie-knife. The knife produced on the trial, and called a Mexican pirate-knife, which is the knife found upon the prisoner, is shown to have been of a very deadly character; such an one as, by unskilled individuals, would be called a bowie-knife (as it was by some of the witnesses), but by connoisseurs a Mexican pirate-knife. The jury, therefore, did not find the defendant guilty of carrying concealed a bowie-knife, but a knife in size resembling a bowie-knife, and we think the testimony well warranted the verdict.

Some affidavits have been introduced on the motion for a new trial, but they only go to the facts of the name of the knife, viz., Mexican pirate, and that such was the knife taken from the defendant. These facts, if proven as stated in the affidavit, would not change the merits of the case, the jury having found the defendant guilty, not of carrying a bowie-knife, but a knife in size resembling a bowie-knife, which the pirate-knife does. This testimony, therefore, could not vary the verdict, as it is found upon the very same facts disclosed in the affidavit.