The first charge requested by the defendant, when referred to the evidence, was in effect an instruction that the fact that two or more witnesses, who were in a position to see the pistol which defendant had on his person, if it had not been concealed, testified that they did not see the pistol, was not sufficient to convict. This went obviously to the weight of the evidence, and was well refused.
There was no error in refusing the second charge. Witnesses for defendant testified that the pistol was not concealed and that they saw it. Witnesses for the State to the contrary testified that they were in a position to see the pistol but for its concealment, that they did not see it, and that it was concealed from ordinary observation. While the facts hypothesized in the charge may,not have presented an irreconcilable conflict, the facts in evidence did present such conflict; and the giving of the instruction to meet a statement of the solicitor — as it manifestly and confessedly was intended to do — that there was irre-conciable conflict in the evidence, would have clearly tended to mislead the j ury. Besides, the charge in reality asserted no proposition of law, but was a mere argument.
Affirmed.