15 is merely a misdemeanor, unless one of the principals is slain, in which case all participants are guilty of murder. 13 Where one is indicted for taking part in a duel, it is not absolutely necessary to allege and prove the actual sending of a challenge, either spoken or written. If, however, it is alleged that a written challenge was sent, it will be necessary to prove it substantially as alleged, and, a fortiori, this is the case where the indictment is merely for sending the challenge. The question whether the accused intended to challenge another person to fight a duel is ordinarily a question of fact for the jury.1 The written challenge must be proved by producing it as primary evidence, or by secondary evidence, after sufficiently accounting for its absence. If the challenge is set out at full length in the indictment, a failure to prove it in some slight particular is not material." The meaning of the writing purporting to be a challenge and the intent of the sender are for the jury. Whether it was intended for a deliberate challenge to mortal combat or was merely a foolish and idle boast, or the meaningless outpouring of irrepressible passion, is for them to determine.18 As all who participate in any capacity in the duel are accomplices, the declarations of any one of them, uttered in furtherance of the common undertaking, are admissible against any or all the others, 19 $484. Carrying concealed weapons-How concealment may be shown—Intent.-To protect individuals against sudden and deadly violence, inflicted with weapons concealed about or conveniently near the person, whether used on sudden impulse or deliberately. statutes have been passed forbidding the carrying of concealed weapons. Though the open carrying of unusual and dangerous weapons was an offense at common law, because it tended to 134 Bl. Com. 199, 145; 2 Bish. Cr. L. $$ 311-315; 1 Russ. Cr. (9th edition) 413; 3 Chitty Cr. Law 728, 848; Bundrick v. State, 125 Ga. 753, 54 S. E. 683. "Daughtry v. State, 54 Tex. Cr. 394, 113 S. W. 14. 13 Commonwealth V. Hooper, Thatcher C. C. (Mass.) 400; Ward v. Commonwealth (Ky., 1909), 116 S. W. 786. 50-UNDERHILL CRIM. Ev. 16 Ward V. Commonwealth (Ky., 1909), 116 S. W. 786. 17 State v. Farrier, 1 Hawks (N. Car.) 487. 18 Ivey v. State, 23 Ga. 576. 19 State v. Dupont, 2 McCord (S. Car.) 334; State v. Taylor, 3 Brev. (S. Car.) 243; Commonwealth V. Boott, Thatcher Cr. Cas. (Mass.) 390. 44 20 terrify and alarm peaceable persons, evidence is always admissible, under these statutes, to show that the weapon, though carried, was not concealed on the occasion charged; but not that the accused was generally in the habit of carrying weapons on his person, openly exposed to view. The concealment of the weapon, with an intent to produce the impression of being unarmed, must be shown affirmatively.23 24 22 If concealed, the jury may infer that the weapon, if a pistol. was loaded, and was worn as a weapon. This is a presumption of fact, not of law, and is rebutable. The burden is upon the prosecution to prove beyond a reasonable doubt that the weapon was concealed or carrying in concealment on the person of the accused.25 That the weapon was so hidden that it could not possibly be seen, in whatever posture the accused might be, need not be proved. If it was not visible to those meeting him in the customary and ordinary associations of social and commercial intercourse, the jury will be justified in finding that it was concealed. Hence, proof that the weapon was carried in a locked 20 '4 Bl. Com. 149; State v. Huntly, 3 Ired. (N. Car.) 418, 421, 40 Am. Dec. 416. It is sometimes by statute made a misdemeanor to point a firearm at another person, whether the weapon be loaded or not. Herrington v. State, 121 Ga. 141, 48 S. E. 908; Elliott Evidence, § 3166; Davenport v. State, 112 Ala. 49, 20 So. 971; 21 Stockdale v. State, 32 Ga. 225, 227; State v. Roten, 86 N. Car. 701, 703; Smith v. State, 69 Ind. 140-143; Plummer v. State, 135 Ind. 308, 318, 34 N. E. 968; Brown v. State, 141 Ala. 80, 37 So. 408. Ark. 448, 450, 36 Am. 15; State v. Johnson, 16 S. Car. 187; Martin v. State, 93 Miss. 764, 47 So. 426; State v. Miles, 124 Mo. App. 283, 101 S. W. 671; Edwards v. State, 126 Ga. 89, 54 S. E. 809. 24 Carr v. State, 34 Ark. 448, 450, 36 Am. 15. 25 People v. Carvelto, 123 App. Div. (N. Y.) 822, 108 N. Y. S. 126: Schroeder v. State, 50 Tex. Cr. 111, 99 S. W. 1003. 26 Smith v. State, 96 Ala. 66, 68, 11 So. 71; State v. Bias, 37 La. Ann. 259; Killet v. State, 32 Ga. 292, 294; Sutton v. State, 12 Fla. 135; Hainey v. State, 147 Ala. 146, 41 So. 968. Under the rule that as between witnesses having equal opportunities of observation, the positive testimony of one that an event happened is entitled to more weight than the evidence of another that, though present, he did not see it; a conviction upon the testimony of one who swears he 32 34 satchel, in a wagon box on which the defendant was seated,s in a bundle,2o in the pocket, 30 in a scabbard,31 in a basket on one's arm, or standing near by in a railroad car,33 not as a means of transportation, but for more convenient access and use, is admissible, and will sustain a conviction. Evidence that the defendant, when arrested for another offense which is not proved, voluntarily surrendered a weapon, is admissible as a quasi-confession of concealment, and will alone sustain a conviction.35 Evidence that he threatened a man with a weapon, or had one in his possession shortly before the act charged, is admissible. The accused may show that the concealment involved no criminal intent. He will not usually be permitted to testify in express saw the weapon will be sustained, though another swears he looked attentively but did not. Fitzgerald v. State, 12 Ga. 213, 216; but contra, Haskew v. State, 7 Tex. App. 107; Underhill on Ev., § 385. As to what evidence is negative, see Hunter v. State, 4 Ga. App. 761, 62 S. E. 466. The jury may, in weighing the testimony of a witness who says that he did not see the weapon, consider what opportunity he had to see it in connection with all the evidence. Newell v. State, 109 Ala. 5, 19 So. 511. Cf., also, Howe v. State, 110 Ala. 54, 20 So. 451. The witness will be permitted to state that he saw "something that looked like a pistol" in the pocket of defendant. Mayberry v. State, 107 Ala. 64, 18 So. 219. *Warren v. State, 94 Ala. 79, 10 So. 838; Commonwealth v. Sturgeon (Ky.), 37 S. W. 680, 18 Ky. L. 613. " Barnes v. State, 89 Ga. 316, 318, 15 S. E. 313. towards his pocket, concealment in the pocket may be inferred. State v. Livesay, 30 Mo. App. 633, 636. 1 Barton v. State, 7 Baxt. (Tenn.) 105; Williams V. Commonwealth (Ky.), 37 S. W. 680, 18 Ky. L. 663. Boles v. State, 86 Ga. 255, 257, 12 S. E. 361; Johnson v. State, 51 Tex. Cr. 648, 104 S. W. 902. 33 Diffey v. State, 86 Ala. 66, 67, 5 So. 576. 4 State v. McManus, 89 N. Car. 555. Terry v. State, 90 Ala. 635, 636, 8 So. 664. A person under arrest for any crime may be searched for concealed weapons and disarmed. The facts thus ascertained may be proved against him on his trial for carrying such weapons, and may be sufficient for his conviction. His constitutional rights are not infringed thereby, nor is he required to furnish evidence against himself. Chastang v. State, 83 Ala. 29, 30, 3 So. 304; Springer v. State, 121 Ga. 155, 48 S. E. 907; "Edwards v. State, 126 Ga. 89, 54 Shields v. State, 104 Ala. 35, 16 So. terms that he did not intend to carry the weapon.37 He may prove that the weapon was not concealed or carried as arms,38 but for the purpose of having it cleaned,3o or repaired,*° or returning it to its owner, or shooting at a mark,+2 or that he had found it,+3 or bought it to sell again,** and was carrying it home, to negative the criminal intent.* 41 46 45 § 485. Apprehension of danger as a defense.-The burden is on the defendant to prove, as an affirmative defense, that he feared bodily harm, but it is not enough for him to show apparent or simulated threats, or those couched in vague and general language, or made by a person who is under bonds to keep the peace,* or that a criminal, whom the defendant arrested, was 47 48 37 State v. Simmons, 143 N. Car. 613, Walls v. State, 7 Blackf. (Ind.) 572. 56 S. E. 701. 573; Goldsmith v. State, 99 Ga. 253, 25 S. E. 624; State v. Woodfin, 87 N. Car. 526, 527, holding the intention in concealment immaterial. 48 Skeen v. State, 34 Tex. Cr. 308, 30 Boissean v. State, (Tex., 1890), 15 S. W. 554; State v. Livesay, 30 Mo. S. W. 118. App. 633, 637; Curlee v. State, 53 Tex. Cr. 395, 110 S. W. 65. 40 Pressler v. State, 19 Tex. App. 52, 53 Am. 383; Fitzgerald v. State, 52 Tex. Cr. 265, 106 S. W. 365, 124 Am. St. 1095. 41 State v. Brodnax, 91 N. Car. 543, 544; State v. Roberts, 39 Mo. App. 47, 48. 42 130. 43 47 Strother v. State, 74 Miss. 447, 21 So. 147; State v. Speller, 86 N. Car. 697, 699; Coffee v. State, 4 Lea (Tenn.) 245, 246; Shorter v. State, 63 Ala. 129, 132. A threat, if recent, though unaccompanied by violence, is State v. Murray, 39 Mo. App. 127, admissible if communicated to the ac cused, State v. Venable, 117 Mo. App. Mangum v. State, 15 Tex. App. 501, 93 S. W. 356; but if enough time 362, 363. "State v. Gilbert, 87 N. Car. 527, 529, 42 Am. 518; Irvin v. State, 51 Tex. Cr. 52, 100 S. W. 779. *State v. Harrison, 93 N. Car. 605; Granger v. State, 50 Tex. Cr. 488, 98 S. W. 836; Carr v. State, 34 Ark. 448, 450, 36 Am. 15; State v. Chippey, 9 Houst. (Del.) 583; Christian v. State, 37 Tex. 475; but contra, Cutsinger v. Commonwealth, 7 Bush (Ky.) 392, 393; State v. Martin, 31 La. Ann. 849; has elapsed to give the person threatened an opportunity to seek legal protection, it is inadmissible. State v. Workman, 35 W. Va. 367, 375, 14 S. E. 9, 14 L. R. A. 600n. The accused ought to convince the jury that he in fact believed the threats would be executed. State v. Casto, 119 Mo. App. 265, 95 S. W. 961. known to be armed," or that the accused feared a savage dog.50 54 Evidence that many lawless men lived near the defendant," that he had been shot at two years before,52 and that he had been advised to go armed, is inadmissible." The fact that the accused was expressly threatened by name by an armed man with whom he had quarreled, and, a fortiori, that his life is in imminent danger," is enough. He need not prove that an attack was anticipated by him at any particular date, 55a or place,56 to justify his belief that he is in immediate danger. To establish this defense, the accused must show facts from which the jury may infer that his purpose in carrying a weapon was defense against an attack which he had reason to apprehend. The conduct of the accused and of the prosecuting witness, their altercations and rencontres, specific threats, reported to the defendant as made, though not made in fact, hostile demonstrations or actual preparations for an assault, are all admissible to establish the defense of an apprehended attack.57 § 486. Character of the defendant as an officer or traveler.-The peaceable character of the accused is relevant to determine his motives and purpose in carrying the weapon. So it is sometimes provided by statute that he must be acquitted if he shall prove satisfactorily that he is a quiet and peaceable person, of good character in the community, and that he carried the weapon because he believed himself to be in great bodily danger.57a The 414. **Reach v. State, 94 Ala. 113, 11 So. Commonwealth v. Murphy, 166 Mass. 171, 44 N. E. 138, 32 L. R. A. 606. Dooley v. State, 89 Ala. 90, 91, 8 So. 528. State v. Barnett, 34 W. Va. 74, 75, 76, 11 S. E. 735. 51 O'Neal v. State, 32 Tex. Cr. 42, 44, 22 S. W. 25. Evidence that lawless men who had once ill used and threatened the defendant were prowling about, armed, and without employment, is relevant. Hardin v. State, 63 Ala. 38, 40. 52 Hopkins V. Bush (Ky.) 480. 53 54 Coleman v. State, 28 Tex. App. 173, 174, 12 S. W. 590. a Sudduth v. State, 70 Miss. 250, 11 So. 680. 50 Bailey v. Commonwealth, 11 Bush (Ky.) 688, 692. 57 Shorter v. State, 63 Ala. 129, 133, Commonwealth, 3 citing Baker v. State, 49 Ala. 350; State v. Venable, 117 Mo. App. 501, 93 S. W. 356. See Dillingham v. State (Tex., 1895), 32 S. W. 771; Brownlee v. State, 35 Tex. Cr. 213, 32 S. W. 1043; 103 Am. St. 904n. |