James Holland was indicted in the Circuit Court of Yell county, for carrying a pistol as a weapon.
On the trial but one witness was examined. He stated, in substance, that the first time he ever saw defendant, was on the 1st of October, 1875, in Yell county. He had two large sized six shooting pistols, one of them a Remmington, navy size and loaded, and the other a Colt’s army pistol. The pistols were such as are commonly used in the United States military and naval service. Defendant was carrying them in.his saddle-bags, and stated he was from Texas. Witness did not know whether he was on a journey or not.
Upon this evidence, the defendant asked the court to charge the jury that if they found from the evidence that the pistols, proven to have been carried, were army sized pistols, and were such as are commonly used in the United States military and naval service, they must acquit defendant.
The court refused this instruction, defendant was convicted, a new trial refused him, he took a bill of exceptions and appealed.
The court erred in refusing to instruct the jury as moved by appellant. Fife v. State, 31 Ark., 455: Wilson v. State, M. S.
Reversed, and remanded for new trial.