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Gholson v. State.

GHOLSON V. STATE.

(53 Ala. 519.)

Indictment-Concealed weapons—“ Traveling.”

A statute prohibited the carrying of concealed weapons, unless the bearer, (among other exceptions) was "traveling or setting out on a journey." Where the defendant carried concealed weapons in returning in a wagon from a town in one county to his home in another county, a distance of twenty-three miles, held, that he was not "traveling" within the meaning of the statute, and was guilty of the offense. The "traveling," like the "setting out on a journey," must be without the ordinary habits, business, or duties of the person, to a distance from his home, and beyond the circle of his friends or acquaintances. (See note, p. 654.)

THE

HE appellant was convicted of carrying concealed weapons, while returning in a wagon from Tuscumbia, Colbert county, to his residence in Franklin county, twenty-three miles. He had requested the court to charge that he was traveling, and therefore should be acquitted; but this was refused, and he assigned the refusal as error.

J. B. Moore, for appellant.

John W. A. Sanford, Attorney-General, contra.

BRICKELL, C. J. There are but few, if any, provisions of the Revised Code which the judiciary should more vigilantly uphold, and rigidly enforce, than those denouncing and punishing the pernicious and too prevalent practice of carrying weapons concealed. It has led, and leads frequently to causeless homicides, and breaches of the peace, which would not otherwise be perpetrated. It was said by this court, years ago: "Much of the waste and destruction of life, under which society is suffering, grows out of the pernicious practice, too prevalent among our citizens, even in the peaceful pursuits of life, of wearing deadly weapons upon their persons. Such deadly weapons are readily drawn, and fatally employed, in resentment of injuries and insults of the most trivial character. While the law secures the right to all to employ deadly

Gholson v. State.

weapons, even to the fatal result in protection of life, or to save one's person from grievous bodily harm, as the law understands that term, we may well ask, why, in a peaceful community, do citizens wear arms, who have no just grounds to apprehend danger to their lives, or those grievous personal injuries which will excuse a resort to deadly weapons?" McManus v. State, 36 Ala. 293. The observations of SAFFOLD, J., in his dissenting opinion, in Lockett v. State, 47 Ala. 46, seem to us eminently just : "The evil sought to be remedied was the insecurity of life caused by the practice of carrying concealed weapons, and the consequent demoralization of society. It was deemed criminal for a person to put in his pocket a weapon to kill his friends and acquaintances in a chance quarrel, or premeditated attack by himself." Further, in speaking of the statutory exception, in favor of one "traveling, or setting out on a journey," he says: "The distance of travel was, therefore, intended to be such as would take him beyond the circle of his general acquaintance, and amongst strangers, for whose conduct he was in nowise responsible, either by his precept or example, and against whom he was not protected by the consideration we exhibit for those whom we know." In Eslava v. State, 49 Ala. 357, it is said, "The traveling, or setting out on a journey,' which justifies the carrying concealed weapons, must be a travel to a distance from home, and not within the line of the person's duties, habits or pleasure."

The evasion of the statute is easy, and frequent; and the offense, because of the frequency of its commission, is relieved, in the estimation of the community, of much of the criminality which should be attached to it, and which the statute intends to affix. The purposes of the statute cannot be accomplished, the practice suppressed, and its evil consequences avoided, unless it is held that, when the fact of carrying the weapon concealed is proved, the accused must, to relieve himself from guilt, show that he is within one of the exceptions expressed.

The statute is "Any person who, not being threatened with, or having good reason to apprehend an attack, or traveling, or setting out on a journey, carries concealed about his person," etc. "The evidence disclosed by the bill of exceptions is, that when the defendant had the pistol concealed about his person, he was returning from Tuscumbia, in Colbert county, to his home in Franklin county, with his wagon, the two points being about twenty-three miles apart. All the evidence is not set out in the bill of excep

Gholson v. State.

tions; but, on these facts only, the court was requested to charge the jury that the defendant was traveling, within the meaning of the statute. The charge is founded on a misconception of the statute. It is not traveling - merely passing from one place to another which justifies the carrying of concealed weapons. The traveling must be, as is the setting out, on a journey. The original signification of journey was a day's travel. It is now applied to a travel by land from place to place, without restriction of time. But, when thus applied, it is employed to designate a travel which is without the ordinary habits, business, or duties of the person, to a distance from his home, and beyond the circle of his friends or acquaintances. Passing beyond these, may involve unknown dangers, from which there may be a necessity to protect himself; as there is a necessity to prepare for defense against an attack, either threatened, or which he has just cause to apprehend. The words are indefinite; and this is the signification in which they are employed in the statute, and not in a larger sense, which would go far to license, rather than to suppress, the practice against which the statute is directed.

For aught that appears in the bill of exceptions, the defendant, in passing to and from Tuscumbia, was in the pursuit of his ordinary duties and business, and within the circle of his friends and acquaintances. On the facts disclosed in the record, the court could not affirm, as matter of law, that he was traveling on a journey. "There was, of consequence, no error in the refusal of the charge requested, and the judgment must be affirmed.

Judgment affirmed.

NOTE BY THE Reporter.-There has been some discussion as to what constitutes a traveler."

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In Atkinson v. Sellers, 5 C. B. (N. S.) 442, Atkinson was an innkeeper, at Garston, complained of for selling liquors on Sunday, and the question was whether the persons to whom he sold them were "travelers," so as to bring him within the provision of the statute, which allows "refreshment to travelers." "Each party had left Liverpool about two o'clock in the afternoon, for pleasure, in a vehicle, and had driven a round of eight to ten miles before arriving at Garston," and they represented themselves to Atkinson, on inquiry as "travelers," and they were held to be travelers within the meaning of the act. The court say: "Of course, a man could not be said to be a traveler who goes to a place merely for the purpose of taking refreshment."

In Taylor v. Humphreys, 10 C. B. (N. S.) 429, the same question arose. Taylor's place was about four miles from Birmingham, and on Sunday he supplied with ale persons who came from Birmingham, some on foot and some by omnibus, and who returned in the same way, and who said they were travelers.

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Gholson v. State.

They were held to be travelers, within the act, the court saying it made no difference whether they were on business or pleasure, on foot or otherwise. Regina v. Rymer, 13 Cox's C. C. 378, was an indictment of an innkeeper for refusing to serve a customer. It was held that a person living in the same town, 1,200 yards from an inn, and walking about the town with a dog, for his own recreation and amusement, is not a traveler within the sense that he has a right at common law to refreshment and entertainment by the innkeeper. The court say: "He clearly was not a traveler or wayfarer. but a mere resident in the town, taking a walk and calling at this bar for a glass of whisky." Under the same act, in Fisher v. Howard, 11 Jur. (N. S.) 305, one who had bought his ticket at a railway station for a place nine miles distant, was held to be a traveler.

In Ramsden v. Gibbs, 1 B. & Cr. 319, the question was whether a horse was **hired to be used in traveling,” so as to be liable to post-horse duty. It was admitted, on the authority of Hanley v. Cubberly, 15 East, 257, that hiring for the purpose of riding a distance of twenty miles and back was hiring for traveling. But the court say: "A person riding a horse for pleasure several miles into the country and back the same day, cannot be said to be using it in traveling. In the fourth case the horse was only hired to take an airing for an hour or two. That certainly was not hired to be used in traveling. The third case, perhaps, admits of more doubt, but, on the whole, I am of opinion that the horse was not even there hired to be used in traveling, the place to which the horse was to go not being fixed. The horse was hired to go ten or twelve miles into the country, to return in the evening." This was held not to be traveling within the meaning of the act. One judge said: "Generally speaking, the term traveling denotes the going to or from one fixed place to another," and that where the party might, in his discretion, go where he pleased, he was not traveling, within the act.

In Taylor v. Humphries, 17 C. B. (N. S.) 539, it was held that persons walking from their residences in town to enjoy the country air on a Sunday morning, and in the course of such walk resorting to an inn for refreshinent, are "travelers," within the act, though the inn be within two miles of their place of abode, provided they do not go abroad for the mere purpose of indulging a propensity for drink.

Peache v. Colman, 1 H. & R. 393, was a case under the licensed victuallers' act. It was there held that persons arriving by train at a railway station, a mile from their residence, and residents of the town who go to the station to meet them, are "travelers." One of the judges said: "Suppose a train should be late, it would be hard upon a landlord if those who came to meet it could not be supplied with refreshment."

In Peplow v. Richardson, 4 L. R., C. P. 168, where one walked on Sunday to a spa two miles and a half from his residence, to drink the mineral water for his health, and was supplied with ale at a hotel, held that he was a traveler. But KEATING, J., said: “I must own that if this had been res integra, I should have said that Deakin was not a traveler." And MONtague Smith, J., observed: "The primary object of the party was not tippling; but being absent from home for a lawful purpose, the refreshment he took was merely ancillary to that purpose."

The subject is elaborately considered in Hamilton v. City of Boston, 14 Allen, 475. Here the court held that a person walking a short distance in public highway, simply for exercise, and to take the air, on the evening of the Lord's day, with no purpose of going to or stopping at any place, but his own house, or of passing from one city or town to another, is not a traveler within the Sunday

Campbell's Administratrix v. City Council of Montgomery.

law. The court remarked: "A person must doubtless, in a loose and genor.. sense, be traveling, in order to maintain an action against a city or town for a defect in a highway. But it does not follow that in a different and penal statute the word is used in the same sense." "The English decisions cited by the defendants' counsel were founded upon the terms and apparent intent of peculiar statutes concerning innkeepers."

In Blodgett v. Boston, 8 Allen, 237, the court said: "The word 'travelers' may well embrace within its meaning, as applied to the subject-matter, every one, whatever may be his age or condition, who has occasion to pass over the highway for any purpose of business, convenience, or pleasure." In this case, a boy playing on a sidewalk was held not a traveler, within the highway acts.

In Stickney v. Salem, 3 Allen, 375, one who received an injury, while stopping for conversation on a highway, and leaned against a defective railing, was not a traveler within the act.

Persons going to market, a day's journey, are regarded as travelers in Texas. Waddell v. State, 37 Tex. 356.

Not so of one who had tied his horse outside the highway, and the horse ran away and suffered injury. Richards v. Enfield, 13 Gray, 344.

But in Stanton v. Metropolitan Raitroad Company, 14 Allen, 485, one who, on Sunday, went in a street car from Charlestown to Roxbury, a distance only four miles or so, was traveling. And one who, on Sunday, was walking from South Boston to Boston, was held to be a traveler. Connolly v. Boston, 117 Mass. 64. And one who was walking from Chelmsford to Lowell, four miles, was held a traveler. Gorman v. Lowell, id. 65.

One who walks a mile for exercise on Sunday is not a traveler. O'Connell v. Lewiston, 65 Me. 34.

Lockett v. State, 47 Ala. 42, one of the cases cited in the principal case, held that one who was going twenty-eight miles, on a railway train, to seek employment, was traveling within the meaning of the act prohibiting the carrying of concealed weapons. The court remark: "The word 'traveling' has no very precise or technical meaning, when it is used without any limitation. Its primary and general import is to pass from place to place, whether for pleasure, instruction, business or health." "The length of the journey or its continuance does not destroy the character of the occupation." "It is enough if he was traveling on a journey, long or short." The other case, Sellers v. State, 49 Ala. 357, was the case of one who resided six miles from Mobile, and did business every day in that city.

CAMPBELL'S ADMX. V. CITY COUNCIL OF MONTGOMERY.

(53 Ala. 527.)

Municipal corporation — Duty to keep streets in repair distinguished from duty of police.

The duty of a municipal corporation to keep its streets in repair is performed when they are free from obstructions, and safe and commodious highways for public travel, and does not extend to matters of mere police regulation

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