The statute raises a presumption that the weapon is concealed upon proof that defendant has it about his person off his own premises. The Code, sec. 1005. The defendant to rebut this presumption relies on the evidence "that the pistol could be seen either when the defendant was sitting down or standing up." On the other hand, the State relies on the fact that the defendant had it on under his overcoat. It does not appear how the overcoat was worn, whether open, displaying the weapon, or partly buttoned up. It could not have been buttoned up entirely, since the weapon "could be seen." Whether the presumption of concealment was rebutted, whether the weapon was in fact concealed, but a close scrutiny might have enabled one to see it, or whether in fact it was worn openly, the overcoat unintentionally in certain positions obstructing the view, was a question which should have been left to the jury. The indictment is for carrying a concealed weapon, not for simply carrying the weapon. S. v. Dixon, 114 N.C. 850. The gist of the offense is the manner of carrying it. The jury should have been told that the burden was on the defendant to rebut the presumption of concealment, and upon the evidence whether that presumption had been rebutted, should have been left to them under proper instructions. Possibly his Honor's view on the facts was right, if he had been sitting as a juror, but as different conclusions might have been drawn from the evidence, the case should have been left to a jury.
New Trial.
Cited: S. v. Hinnant, 120 N.C. 573; S. v. Reams, 121 N.C. 557; S. v.Boone, 132 N.C. 1110; S. v. Simmons, 143 N.C. 617; S. v. R. R.,145 N.C. 572; S. v. R. R., 149 N.C. 474; Westfelt v. Adams,159 N.C. 424.
(1051)