Earhart v. State
Earhart v. State
Opinion of the Court
delivered the opinion of the court.
We must hold, either that the legislature, in amending § 2985 of the code by an act approved March 9, 1888, nullified the section by making it senseless and uncertain, so as to be unenforceable, or that it committed a clerical mistake in striking out two words more than was intended, viz : the words “ an attach.” The latter is the more probable, and to read the section as amended, retaining those two words, will accomplish what was manifestly the legislative purpose, and leave the law in force. We, therefore, adopt that view, and under it the section as amended will be read, “ any person, not being threatened with an attack, .... who carries concealed, etc.” It is true that an attack may be threatened by both persons and things, but no one could fail to understand that the attack against which one may arm himself and carry a weapon concealed is one by a person, in contemplation of the statute. The appellant should have been permitted to prove all that Tuttle had said indicating a threatened attack on him, and it should have been left to the jury to say whether or not he was threatened with an attack.
Reversed and remanded.
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- John D. Earhart v. State
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- 1. Construction. Legislative intent. Clerical mistake. Where the literal reading of an act striking certain words out of a section of the code renders the code provision senseless, and it is evident that it was not intended to nullify the law, and that a clerical error was made in expunging too many words, a view being maintainable giving effect to the act and the section as amended, by striking out only a part of the words, it will be assumed, in order to carry out the manifest purpose of the legislature, that such error was made, and the act will be construed accordingly. 2. Same. Code 1880, § 2958: act of March 9, 1888. Concealed weapons. In striking out of § 2958, code 1880, the clause, “or having good and sufficient reason to apprehend an attack” (Acts 1888, p. 89), it is manifest that the legislature made a clerical mistake as to the words “an attack,” and did not intend to embrace them in the act, as otherwise the section is left without any meaning. Therefore said section as amended is to be read without excluding these words.