Fife v. State.

opinions uphold the same doctrine, but LACY, J., dissented. So in Andrews v. State, 3 Heisk. 165; but two judges dissented, the judge who delivered the dissenting opinion concluding thus: "Regretting, as I do, that the nobler objects of bearing and wearing arms are too often and too horribly perverted, I cannot approve legislation which seems to foster and encourage a craven spirit on the part of those who are disposed to obey the laws, and leave them to the tender mercies of those who set all law at defiance." In this case, however, the court would not include a revolver among the prohibited weapous. See 8. c., 8 Am. Rep. 8.

In Hill v. Georgia, 53 Ga. 472, it was held that a law prohibiting the carrying arms in courts of justice is constitutional. In regard to the constitutionality of laws prescribing the manner of carrying arms, the court say it includes the time and place as well, and quote largely from the Bible to illustrate it. "And it will be found," they say, "that the manner of doing a thing often, both in looks and in speech, includes the time and the place as well as the precise detail of the act itself. If I were to ask an old farmer his manner of sow. ing turnips, is it supposable that he would leave out the time, the dark nights in August, or the character of the land and the mode of preparing it?" But in Bliss v. Commonwealth, 2 Litt. 90, the contrary doctrine was asserted. The court say, In principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed." "In truth, the right of the citizens to bear arms has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards,” etc.

What constitutes the offense.-In Stockdale v. Georgia, 32 Ga. 225, carrying a pistol in the waistband, with butt and cock exposed, was held not within the act. This is put on the ground that it is lawful to bear arms openly, and impossible to carry a pistol without part of it concealed. "What the legislature did intend was to compel persons who carried these weapons, so to wear them about their persons that others, who might come in contact with them, might see that they were armed and dangerous persons." But, in Florida, where the statute permits carrying arms “openly outside of all their clothes," the contrary was held. Sutton v. Florida, 12 Fla. 135. It is sufficient if the weapon is concealed from ordinary observation. Jones v. State, 51 Ala. 16, and this is for the jury. In Sears v. State, 33 Ala. 347, carrying a knife entirely unlike a Bowie knife, held not to be within the act.

An army repeater is a horseman's pistol" tolerated by the Georgia law. Puryear v. State, 44 Ga. 221.

In Texas, one who bought a pistol at a store, carried it to other places to procure ammunition, and thence fifteen miles home, was held not to infringe the act, in the absence of any other proof; because he may have made the purchases and carried the pistol home for a lawful purpose. But in Cutsinger v. Commonwealth, 7 Bush, 392, it was held that where one purchased a pistol for another and was carrying it to deliver it to the owner, and not with the intent of using it, he was guilty. The motive is immaterial. Walls v. State, 7 Black. 572.

Under the Texas law which permits the carrying of a pistol while hunting, carrying it while hunting on one's own premises was held an infringement. Titus v. State, 42 Tex. 378.

Reasonable ground to apprehend an attack at a dangerous locality which defendant visited early in the morning, will not justify carrying a concealed weapon, procured for that occasion late in the day, at a locality not shown to be dangerous. Chatteaux v. State, 52 Ala. 388.

Fife v. State.

Being on one's own premises, and in fear or danger of being attacked, will not justify the act under the Arkansas law. Carroll v. State, 28 Ark. 99; s. c.. 18 Am. Rep. 538. Otherwise under the Kentucky law, provided the accused believed he was in present danger. Bailey v. Commonwealth, 11 Bush, 688.

In Atwood v. State, 53 Ala. 508, it was held that carrying a pistol, the tubes of which were battered, and the lock so out of order that it could not be discharged by the trigger, is within the act. The court said: “Until the pistol has lost so many of its parts that it has ceased to be a fire-arm, and is incapable of use as such, carrying it concealed in the absence of the exculpatory circumstances, mentioned in the statute, is an indictable offense. A fire-arm is a weapon acting by the force of gun-powder, and a pistol is a small, light fire-arm. The pistol earliest in use was a matchlock arm, and yet a fire-arm, the lock containing a match for firing it. This was succeeded by the 'flint and steel' lock, and this by the percussion lock. The manner in which the weapon can be firedi does not enter into its definition, however it may affect its value and utility.. The flint and steel' lock had not entirely disappeared when the first statute against carrying concealed weapons was enacted. Carrying such a pistol cone. cealed, though it was without a flint, or other appliance by which it could be fired, was, and would now be within the statute, though as a fire-arm it was. scarcely capable of use. So of a matchlock, or any other kind of pistol, which has not lost so many of its parts that it has ceased to be a fire-arm. No inquiry into its incompleteness, or value, or capability of use, can be indulged, with-out departing from the words of the statute; nor is it material what is the motive for carrying it, unless the excusing facts mentioned in the statute can be shown. The usefulness of the statute would be greatly impaired if such inquiries were permitted, and the seeming incapability of the weapon for immediate use would become the frequent means of evading its penalties. It cannot be doubted the weapon carried was a pistol, though it may not have been in good repair, and scarcely more capable of inflicting injury than the most improved fire-arm unloaded, or the old ‘flint and steel' without the flint.” In Evins v. State, 46 Ala. 88, on the other hand, it was held that a pistol that has no main-spring or other necessary machinery of a lock, the hammer and cock of which were disconnected and loose, and the nipple or tube of which was not touched by the hammer when down, and which could not probably be discharged by a cap on the tube, was not within the act. The court say: "We hold that a pistol, to be within the purview and meaning of the statute, and the mischief and evil intended to be prevented, must have such a degree of perfectness as that it may reasonably be carried and used as a weapon. It is not enough that it has a stock, and a barrel that may be loaded and fired off by a match or in some other such way. This was clearly not the character and condition of this pistol. It was certainly worthless as a weapon, and no sen sible person would have relied upon it as a weapon to attack an adversary, or to defend himself.”

Cairo and Fulton Railroad Company v. Turner.

CAIRO AND FULTON RAILROAD COMPANY V. TURNER.

(31 Ark. 494.)

Eminent domain — Right of entry — Compensation.

Under a State Constitution not in terms requiring payment as a condition precedent to an entry upon private property sought to be acquired for public uses, a railroad corporation, authorized by the legislature, may enter upon private property necessary to its uses, without such preliminary payment, provided the means of subsequently enforcing such payment have been provided by statute; and the right of way thus acquired cannot be affected by a constitutional provision, subsequently adopted requiring prepayment in such cases.

In such cases the land owner is restricted to the statutory remedy for compensation, and cannot maintain ejectment.

A

CTION of ejectment. The opinion states the case.

Loughborough & Rose, for appellant.

Compton & Parsons, contra.

ENGLISH, C. J. On the 1st of September, 1873, Blakely D. Turner brought an action of ejectment against the Cairo and Fulton Railroad Company in the Circuit Court of White county, for a tract of land containing about five acres, and described in the complaint to be a tract of 200 feet in width, bounded on the north by the north boundary line, and on the south by the south boundary line of the north fractional half of the north-west fractional quarter (south of Little Red River) of fractional section 3, township 7 north, range 6 west, and on the east and west by lines. parallel to, and equidistant from, the center line of the main tract of said railroad.

The defendant answered, after the formal denial of plaintiff's title and rights of possession, that: "It is a corporation existing under the laws of the State, having authority to contract, operate and maintain a railroad; that it has constructed, and is now maintaining and operating a railroad, the line of which is laid across or upon the tract of land described in the complaint, and for such purpose defendant has taken and now

Cairo and Fulton Railroad Company v. Turner.

holds, in pursuance of law, a portion of said land, to wit: a strip of 100 feet in width across said tract, being measured 50 feet on each side of the center line between the rails of its said railroad, etc.

That its possession and occupancy of said portion of said land was had and begun for more than eighteen months before the commencement of this action, and with the full knowledge of the plaintiff, who well knew the purpose and intention of this defendant in taking possession of the land, to be to construct and operate a continuous line of railroad across the entire State, one portion of which would be laid on the land as aforesaid; and the plaintiff well knew, that to construct said railroad across said land would require the defendant to expend large sums of money, and yet the plaintiff allowed such work to be done, and large sums of money to be expended thereon without objection thereto; and plaintiff well knew that the portion of said railroad laid across said land would be, and is, essential to the operation of the entire line, and without it the defendant could not, and cannot, fulfill its contracts to carry the mails of the United States, and to transport freight and passengers, which, by law, it is bound to do. That the defendant was, and is still, willing and ready to make compensation to the lawful owner of said tract of land for any and all damages to which said owner may be entitled by reason of the appropriation of the land as aforesaid, whenever such damages are ascertained and fixed in the manner prescribed by law.”

The cause was submitted to the court sitting as a jury, October 2d, 1874, on the following agreed statement of facts:

"First. The plaintiff is, and was, at and before the institution of the suit, and when the defendant took possession thereof, the owner in fee of the land in controversy.

"Second. The defendant entered into possession of so much of the land in controversy as is within fifty feet of the center of the track of defendant's railroad, on either side thereof, in the month of March, 1872, and constructed said railroad thereon, and has ever since held possession of the same, and used it as a right of way for said road. No compensation has ever been made to the plaintiff for said land, or proceeding instituted by either party looking to that end, or agreement of any sort entered into between them in regard to it.

Third. The yearly rental value of said land, without regard to or including the improvements and fixtures placed thercon by defendant, is $5, since defendant entered. The same, including

Cairo and Fulton Railroad Company v. Turner.

said improvements and fixtures, and estimating it in reference thereto, is $100."

The defendant asked the court to declare the law as follows: "That the land having been taken possession of by the defendant merely for a right of way, and for the purpose of building and operating a railroad across said land, an action of ejectment will not lie in favor of the plaintiff, and that the finding should be for the defendant."

Which the court refused, but declared that on said agreed state of facts, plaintiff was entitled to judgment.

The court rendered judgment in favor of plaintiff for possession of the land, and for $250 damages for its detention.

The defendant moved for a new trial on the grounds:

"First. The court erred in refusing the declaration of law asked by the defendant.

"Second. The finding and judgment of the court are unsupported by the evidence in the case.'

The court overruled the motion, and defendant excepted and appealed.

The Cairo and Fulton Railroad Company was chartered by act of the general assembly, approved 12th January, 1853, under the Constitution of 1836.

It was empowered by its charter to survey, locate, construct, complete, alter, maintain and operate a railroad from a point on the Mississippi river, opposite the mouth of the Ohio, in the State of Missouri, by way of Little Rock, to the Texas boundary line, near Fulton, with branches, etc. §2. And to unite its road with the southern end of the Missouri road, at some suitable point on the line which divides Arkansas and that State, and its southern end with any road coming in from Texas, at such point on the boundary line which divides that State from Arkansas that might be deemed most eligible; and to combine with other railroad corporations, etc. § 10.

Sec. 3 provides that "The said corporation shall have the right of way upon, and may appropriate to its sole use and control, for the purposes contemplated herein, land not exceeding one hundred feet in width on each side of and through its entire length; may enter upon and take possession of and use all and singular, any lands, streams and materials of any kind for the location of depots, and stopping stages, for the purpose of constructing bridges, dams, embank ments, excavations, spoil-banks, turnouts, engine-houses, shops, and other buildings necessary for the construction, completing,