The reporter will insert the substance of the criminating testimony in his statement of facts.
*31Charges must lie interpreted in the light of the testimony before the jury; and the charges should always be, not only a correct, general exposition of the law governing the issue, but should also be applicable to the evidence — the whole evidence. If it ignore the influence of qualifying testimony, it necessarily misleads the jury,- and is faulty.—3 Brick. Dig. 107, §§ 9 to 12, inclusive ; Fariss v. State, 85 Ala. 1.
The City Court charged the jury, “that if they believe from the evidence that the defendant carried the pistol, and that it was concealed for ever so short a time, then the defendant would be guilty as charged.” Only two persons, Ward, the •witness, and the defendant, are shown to have been present when the alleged offense was committed. -
It can not be gainsaid, that an ordinary pistol might be so carried in the hand, as to amount to the offense of carrying it concealed about the person. To do so, however, would require more concealment than results from simply holding it in the hand. The true inquiry and test, in such cases, are, was it so carried as not to be discernible by ordinary observation'{ That it is not in fact seen, may result from want of attention. That is not enough. The proper inquiry was, could it have been so seen by ordinary observation, as to disclose it was a pistol, held or carried as the testimony convinces the jury the real facts were ? If it could, then the statute was not violated. Jones v. State, 51 Ala. 16, Street v. State, 67 Ala. 87; Farley v. State, 72 Ala. 170.
Under the charge copied above, construed in connection with the testimony, the jury would have felt authorized, if not required, to convict, if, by the position of Ramsey’s body, or of his arm, the pistol was, “for ever so short a time,” concealed from Ward’s view, for he alone appears to have been present. This was not • the true test. The City Court erred in giving this charge.
The two charges asked were properly refused.
In what we have said, our aim has been, not to pronounce on the sufficienc3r of the testimony, but to declare the necessary fact or status to authorize conviction. It is for the jury to determine whether the pistol was carried concealed about the person, under the rules we have declared.
Reversed and remanded.