THOMAS B. COFFEE v. THE STATE.

Criminal Law. Unlawful weapons. Self-defense. The courts can not, merely upon the ground that the defendant was acting in self defense, sanction the use of an unlawful weapon in an unlawful manner, nor will this Court revise the action of the trial judge in inflicting punishment left by law to his discretion, except in a case of gross abuse of that discretion.

The plaintiff in error was indicted and convicted for carrying a pistol, other than an army or navy pistol, concealed about his person, in the streets of Memphis. The Court sentenced him to confinement in the county workhouse for sixty days and fined him fifty dollars.

The bill of exceptions shows that the defendant was found on the street with a pistol concealed about his person, as charged, and that the pistol (p.246)was not such as is used in the army or navy of the United States. It further appears that the defendant is a peaceable man, not in the habit of unlawfully carrying weapons; that his life had been threatened within the previous hour by a dangerous and violent man, who was in the wrong, and that the defendant sent for the pistol and armed himself for the purpose of self defense.

Upon these facts, an earnest and able argument has been made on behalf of the defendant, that the judgment should be reversed and a nolle prosequi entered. But it is too clear for argument that the Courts cannot, merely upon the ground that the party was acting in self defense, sanction the use of an unlawful weapon in an unlawful manner, the intent to use it being clearly shown: Day v. State, 5 Sneed, 496.

The law prescribes the mode in which the person of the citizen may be protected. And if a party chooses to rely upon his rights of self defense, he must take care, at his peril, to use a lawful weapon in a lawful manner.

It is true the facts disclosed may greatly extenuate the offense and justify the trial Judge in remitting the discretionary part of the punishment. This Court cannot, however, supervise the discretion except in a plain case of abuse. The action of the Court below may be influenced not merely by the circumstances of the particular case, but by the necessity of suppressing the commission of that class of offences in the community.(p.247)

As the facts appear on paper, there are circumstances in this case which do extenuate the guilt of the defendant. They have doubtless been duly weighed by his Honor, the trial Judge, and may be again when the cause is remanded.