WILSON v. STATE.

(Supreme Court of Mississippi. Jan. 5, 1903.)

CONCEALED WEAPONS--DEFENSE--EVIDENCE--INSTRUCTIONS.

1. Const. § 12, provides that "the right of every citizen to keep and bear arms in defense of his home, person, or property shall not be called in question, but the legislature may forbid carrying concealed weapons." Defendant's evidence showed that the night preceding the one on which he carried a pistol in his pocket in his own house there was a disturbance of the chickens of his sister, who lived with him, and he thought one or two chickens were stolen, and that one or two nights before somebody broke in the window. Held too indefinite to constitute a defense to the charge of carrying a concealed weapon.

2. Where, on the trial of defendant, charged with carrying a concealed weapon, the only evidence to support a conviction was that of a witness who distinctly said he saw defendant draw his pistol from his pocket, an instruction that, "if there was a possibility that such witness was mistaken, they should acquit the defendant," was properly refused.

TERRAL, J. The case discloses the fact that Jim Wilson had carried a pistol in his pants pocket in his home or residence. He attempted to justify his action under section 12 of the constitution, which reads: "The right of every citizen to keep and bear arms in defense of his home, person, or property * * * shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons." He proved by his own evidence that on the night preceding the one on which he had the pistol in his pocket at his own home there was a disturbance of (p.172)the chickens of his sister, who lived under the same roof, when he thinks one or two of the chickens were taken. He further stated on one or two nights before that somebody broke in the window. Upon this vague and uncertain evidence counsel insists that his client is protected in carrying the pistol concealed by section 12 of the constitution, above quoted. It is to be noted that the stealing of even one chicken on the night before is uncertainly proved by the witness. The breaking of the window is not shown to have had any connection with the disturbance of the chickens, nor is there any evidence to characterize the breaking of the window. Whether broken accidentally or purposely is not shown. It is, in our view, too indefinite to constitute a defense of any sort. Certainly there is nothing in the evidence that squints at a defense under the law on the subject of carrying concealed weapons, which is unquestionably constitutional. The only witness that said anything that would support a conviction of the defendant was Bell, who distinctly said he saw defendant draw his pistol from his pocket; and the fifth instruction requested for defendant, as shown by the record, was that, "if there was a possibility that Bell was mistaken, they should acquit defendant," and this was refused. Now counsel bases his argument upon the supposition that the record reads "probability," instead of "possibility." It is unnecessary, as we think, to decide what effect the use of the word "probability" would have had upon the case if that word had been used in instruction. Request 5 for defendant was rightfully refused. The law will not base a right of action or defense upon mere possibilities, one or more.