The right to carry a bowie-knife for lawful defense is
secured, and must be admitted. It is an exceeding destructive
weapon. It is difficult to defend against it, by any degree of
bravery, or any amount of skill. The gun or pistol may miss its
aim, and when discharged, its dangerous character is lost, or
diminished at least. The sword may be parried. With these weapons
men fight for the sake of the combat, to satisfy the laws of honor,
not necessarily with the intention to kill, or with a certainty of
killing, when the intention exists. The bowie-knife differs from
these in its device and design; it is the instrument of almost
certain death. He who carries such a weapon, for lawful defense,
as he may, makes himself more dangerous to the rights of others,
considering the frailties of human nature, than if he carried a
less dangerous weapon. Now, is the legislature powerless to protect
the rights of others thus the more endangered, by superinducing
caution against yielding to such frailties? May the state not say,
through its law, to the citizen, "this right which you exercise, is
very liable to be dangerous to the rights of others, you must
school your mind to forbear the abuse of your right, by yielding to
sudden passion; to secure this necessary schooling of your mind, an
increased penalty must be affixed to the abuse of this right, so
dangerous to others." This would be in accordance with the well
established maxim of law, that "you must so use your own as not to
injure others." A law inflicting such increased penalty, would
only be a sanction of this rule.
Such admonitory regulation of the abuse must not be carried
too far. It certainly has a limit. For if the legislature were to
affix a punishment to the abuse of this right, so great, as in its
nature, it must deter the citizen from its lawful exercise, that
would be tantamount to a prohibition of the right. In the absence
of authority bearing on the question, we are not now prepared to
say, that this law is one of such a nature, or that such has been,
or will be, its practical effect. This is a question of power, not
of policy. The legislature has the power to put all cases of
manslaughter, committed with deadly weapons, on the same footing
with murder, in the punishment, leaving it to the jury to affix the
degree of punishment, according to their opinion of the degree of
its atrocity. If so, it is difficult to see the reason why they
may not do this, in the case of a bowie-knife, the most deadly of
all weapons in common use.
Another objection taken to the action of the court, is, that
the defendant was not put upon his election, as to whether he would
be tried under the code, or under the amendments. This is necessary
only when "the punishment of the offense is ameliorated" by the
last law. The maximum of punishment, both of murder and of
manslaughter, is the same under both laws, and the minimum in both
is increased by the last law. The main difference, otherwise, is
the establishment of degrees in murder, and its punishment
accordingly. This limits the discretion of the jury, and would
more often be prejudicial to a defendant than beneficial. We
cannot say, then, that the punishment has been "ameliorated," in
reference to the interests of a defendant by the last law.
, Art