Atwood v. State

The only inquiry presented by the evidence was, whether the weapon carried by the appellant was a pistol, within the meaning of the statute against carrying concealed weapons. R. C. § 3555. The offense does not consist in the carrying a pistol which is capable of being used as a weapon of present offense or defense. If it did, a pistol not loaded would not constitute the offense. Yet it has been expressly decided, under a statute similar to ours, the offense was complete though the pistol was not loaded, and therefore not capable of use as a fire-arm. State v. Dugan, 6 Blackf. 31. Nor are we aware it has ever been doubted, such was the proper construction of our statute. A pistol may lose so many of its parts that it would cease to be the weapon contemplated by the statute. The weapon contemplated is a fire-arm; this is manifest from the words of the statute, “ a pistol, or fire-arms of any description.” 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 firearm is a weapon acting by the force of gun-powder, and a pistol is a small, light fire-arm. The pistol earliest in use *510was 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 fired 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 concealed, 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, without 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. There was no error in the charge given by the court, or the refusal to charge as requested, and the judgment is affirmed.