¶1(after stating the facts). First: As early as Watson v. State, 29 Ark. 299, this court said: “The only purpose of the warrant is to have the person charged with the commission of the offense arrested and brought before the justice, or other officer issuing it, to be dealt with according to law; and when that is done it has performed its function, and has no operation whatever upon the subsequent proceedings. The object in naming or stating in it the offense charged is only that the person to be arrested may at the time be informed for what he is arrested; but if it does not then sufficiently appear, it can have no such effect as releasing him when brought before the magistrate.”
¶2The warrant contained the charge generally that appellant had carried a pistol as a weapon, and this was sufficient to admit proof of carrying, as a weapon, a pistol such as is not used in the army or navy of the United States; or of carrying, as a weapon, a pistol such as is used in the army or navy of the United States in any manner except uncovered and in his hand. The warrant, and the arrest under it, gave the court jurisdiction, and it was then a question to be determined by the evidence, as to whether the appellant had carried a pistol as a weapon such as is not used in the army or navy of the United States, or whether he had carried as a weapon an army or navy pistol in his pocket, or in some other manner than in his hand and uncovered. See Blacknall v. State, 90 Ark. 570; Searcy v. Turner, 88 Ark. 210; Burrow v. Hot Springs, 85 Ark. 396, and cases there cited.
¶3In instruction number 3 given at the request of appellant the court told the jury “that the burden was on the State to prove that the pistol was not such as is used in the army or navy of the United States, and that this fact must be proved by testimony offered in the case, and not left to be presumed or arrived at by the jury from their general knowledge; and, unless the State has proved by competent testimony in the case, beyond a reasonable doubt, that the pistol in question was not such as is used in the army or navy of the United States, the jury will acquit the defendant.” This instruction was in accord with the doctrine of this court announced in Vaughan v. State, 84 Ark. 332; McDonald v. State, 83 Ark. 26; State v. Ring, 77 Ark. 139, and other cases.
¶4Under this instruction appellant would have been entitled to-a verdict of not guilty as matter of law upon the authority of the above cases, if the only charge against him had been that of carrying a pistol as a weapon such as is not used in the army or navy of the United States, for there was no proof that the pistol was not such a pistol as is used in the army or navy of the United States.
¶5In the cases of State v. Ring, McDonald v. State and Vaughan v. State, supra, the charge was by indictment under section 1609 of Kirby’s Digest. The proof had to correspond with the allegations of the indictment. The indictment could not be amended to correspond with the proof.
¶6But in this case, as we have seen, the warrant and arrest brought the appellant before the court to be tried for the offense of carrying a pistol, as a weapon, in any manner that the evidence might show that he committed that offense, whether by carrying as a weapon such pistol as is not used in the army or navy, or by carrying as a weapon such pistol as is used in the army or navy in some other manner than uncovered and in his hand. In other words, the charge under this warrant was tantamount to a charge of the offense of carrying a pistol as a' weapon in the alternative, and brings the case well within the rule announced in Blacknall v. State, supra, and State v. Bailey, 62 Ark. 489. It follows that the latter clause of instruction number 3 given at the request of appellant was more favorable to him than the evidence warranted, for it told the jury to acquit “unless the State has proved by competent evidence beyond a reasonable doubt that the pistol in question was not such as is used in the army or navy of the United States.” But, under the evidence, the appellant was not entitled to acquittal if the State proved that he carried in his pocket, as a weapon, a pistol, even though it was such a pistol as is used in the army or navy of the United States. The State adduced evidence tending to prove that the appellant drew the pistol from his pocket which he used as a weapon. Therefore appellant can not complain because the jury ignored an instruction given at his request that was more favorable to him than the law authorized under all the facts that the evidence tended to prove.
¶7This instruction number three at the request of appellant was based on one phase of the evidence only, to-wit, that there was no evidence to show that the pistol was not such as is used in the army and navy of the United States. But the verdict shows that the jury grounded their verdict upon the evidence which tended to show that the appellant “pulled a big gun out of his pocket” which he used as a weapon. It was within the province of the jury to accept this evidence on behalf of the State.
¶8On the theory presented alone by this evidence, the jury was correctly instructed in instructions numbered 2 and 3, given at the request of the State. These instructions were in irreconcilable conflict with instruction number three given at the request of appellant, since that allowed the jury to consider only as to whether the pistol was not such pistol as is used in the army or navy of the United States. But, if the jury had found that the pistol was not such as is used in the army or navy of the United States according to instruction number three given at the request of appellant, they could only have returned a verdict of not guilty. The fact therefore that they returned a verdict of guilty shows that their finding was based on the charge of his carrying a pistol as a weapon such as is used in the army or navy, in a manner except uncovered and in his hand.
¶9The conflict in the instructions could not have confused the jury. The propositions covered by them were entirely distinct, and the verdict shows which view of the evidence the jury must have adopted, and that such view was necessarily based upon the correct instructions in the cause. The erroneous instruction was in appellant’s favor and invited by him, and therefore he can not complain because such instruction is in conflict with other instructions that are correct.
¶10Second. The second instruction given at appellant’s request is not the law. The statute inhibits “wearing” or “carrying” “in any manner whatever as a weapon any pistols except such as are used in the army or navy of the United States” (Kirby’s Dig., § 1609), and makes it unlawful to “wear” or “carry” any such pistol as is used in the army or navy in any manner except uncovered and in his hand. Kirby’s Dig., § róio.
¶11To “wear” or “carry” “in any manner as a weapon” is broad language. The statute “takes no note of the time” the pistol shall be carried. The purpose is to prevent the “wearing” or “carrying” about the person any of the pistols mentioned under the circumstances detailed in the statute as weapons, i. e., to be used aggressively or defensively. The length of time it may be carried for such purpose is wholly immaterial.
¶12Other inhibited conditions existing, the use of a pistol in fight, though but for a moment or second, is evidence that it was carried as a weapon in the sense of the statute. See Lemmons v. State, 56 Ark. 559; Carr v. State, 34 Ark. 448.
¶13The court has correctly declared the law applicable to the charge of carrying a pistol such as is used in the army or navy of the United States. Therefore it was not error to refuse this as applied to that kind of pistol.
¶14Finding no prejudicial error, the judgment is affirmed.