The following indictment was presented by the grand jury of Little River 'County, at the January, 1905, term of the Little River Circuit Court:
“The grand jury of Little River County; in the name and by the authority of the State of Arkansas, accuses J. A. McDonald of the crime 6f carrying concealed weapons, committed as follows, to-wit: 'The said J. A. McDonald in the county and 'State aforesaid, on the 15th day of April, A. D. 1904, did unlawfully carry a pistol as a weapon, said pistol not being such a pistol as is commonly used in the army or navy of the United States, against the peace and dignity of the State of Arkansas.”
This .indictment was based upon section one of the act' ■entitled, “An act to preserve the public peace and prevent crime,” approved April 1st, 1881, which is as follows:
“Any .person who shall wear or carry in any manner whatever, as a weapon, any dirk, or bowie knife, or a sword, or a .spear in a cane, brass or metal knucks, razor, or any pistol of any kind whatever, except such pistols as are used in the army or navy of the United States, shall be guilty of a misdemeanor. Provided, that officers whose duties require them to make arrests or to keep and guard prisoners, together -with the persons summoned by such officers to aid them in the discharge of such duties, while actually engaged in such duties, are exempted from the provisions of this act. Provided, further, that nothing in this act he so construed as to prohibit any person from carrying any weapon when upon a journey or upon his own premises.”
Section two of the same act is as follows: “Any person, ■excepting such officers, or persons on a journey, and on his premises, as are mentioned in section one of this act, who shall wear or carry any such pistol as is used in the army or navy of the United States, in any manner except uncovered and in his hand, shall be deemed guilty of a misdemeanor.”
*29The carrying of such pistols as are used in the army or navy of the United States in any manner is not an offense under section one. The carrying of it in any manner except uncovered and in hand is made a separate offense by section two, which is held to be constitutional in Haile v. State, 38 Ark. 564.
It was proved that McDonald carried a pistol about the 15th of April, 1904, and it was exhibited in court and to the witnesses of the State at the time they saw him with it. The question was, was it such a pistol as is used in the army or navy of the United States? McDonald testified that it was a 41 Colt pistol on a 45 frame, and that it was such a pistol as the Arkansas State Militia carried 'about a year before he was testifying. Jim Sanderson testified that the pistol used in the army of the United States in 1898 was a 38 on a 45 frame. He did not know the size used at the time of his testifying.
Among other .instructions, the court gave the following over the objections of the defendant:
“3. The court tells the jury that; the carrying of a pistol being admitted by defendant or proved beyond a reasonable doubt as charged in the indictment, then the law presumes that said pistol was carried as a weapon, and the burden is upon defendant to show that said pistol was not carried as a weapon or was such a pistol as is commonly used in the army and navy of the United States, and carried open in the hand.’'
The jury found the defendant guilty, and assessed his fine at fifty dollars; and he appealed.
In State v. Ring, 77 Ark. 139, it was held that it was necessary to allege, in an indictment. for unlawfully carrying a pistol as a weapon, that it was not such a pistol as is used in the army or navy of the United States. The court in that case said: “The exception (that is, so much of the statute as excepts the army or navy pistol) being in the enacting clause of the statute, it is an essential part of the offense, and must be negatived in the indictment, in order that the description of the offense may correspond with the terms of the statute. It is otherwise where the exception appears^ in the statute by way of proviso in a separate clause. Bone v. State, 18 Ark. 109; Matthews v. State, 24 Ark. 484: Wilson v. State, 33 Ark. 557."
*30The exception being an essential, part of the offense, the burden was upon the State in this case to prove it in order to convict the defendant of the offense of unlawfully carrying the pistol. Hopper v. State, 19 Ark. 143. There was no reason for saying that the burden was upon the defendant, because it was a matter peculiarly within his knowledge; for the pistol was exhibited .in court and to the witnesses who testified in behalf of the State at the time they saw him with it.
It was not clearly shown by the evidence that tlxe -pistol carried by appellant about the 15th of April, 1904, was an army or navy pistol. The evidence leaves it in doubt. In view of this fact, the instruction of the court telling the jury the burden was on the defendant to ptove that it was such a pistol was prejudicial. It was erroneous and prejudicial in another •respect. It in effect told the jury that if it was such a pistol it was necessary for the defendant to prove that he carried it in his hand before they could acquit. That is not true. He was not indicted for unlawfully carrying an army or navy pistol. Such an act is a separate and distinct offense from that charged; and if it had been charged, the burden would have been on the ■State to prove that it was not carried in the hand.
Reversed and remanded for a new trial.