Schraeder v. State ( 1928 )

Sam Schraeder was convicted in the Court of Common Pleas of Hancock county on a charge of carrying a concealed weapon, and this proceeding in error is prosecuted to reverse that judgment.

Three questions are presented for our determination:

1. Is a revolver a pistol, within the purview of Section 12819, General Code?

Section 12819, so far as pertinent here, provides:

"Whoever carries a pistol, bowie knife, dirk, or other dangerous weapon concealed on or about his person shall be fined * * * or imprisoned * * *."

The indictment reads, in part, as follows:

"That Sam Schraeder, late of said county, on the 15th day of July, in the year of our Lord, 1927, at the county of Hancock, aforesaid, unlawfully did carry concealed on or about his person a dangerous weapon, to wit, a certain Colt .32-.20 revolver * * *."

Counsel for plaintiff in error contend that a revolver is not a pistol, within the terms of the statute; that, in order to constitute a revolver a dangerous weapon, within the meaning of the statute, the indictment must allege, and the proof must show, that the revolver was loaded with powder and ball. With this contention we do not agree.

A "revolver" is defined in Funk and Wagnall's New Standard Dictionary of the English language, as follows:

"A firearm, especially a pistol, having a breech-loading chambered cylinder so arranged that the cocking of the hammer or movement of the trigger, in its return motion, revolves it and brings the next cartridge in line for firing."

Inasmuch as a revolver is, in fact, a pistol, it follows that it is not necessary, in a prosecution for a violation of Section 12819, General Code, for the state to allege in the indictment, and prove on the trial, that the revolver was loaded with powder and ball.

2. Did the trial court err in permitting the prosecutor to show the contents of the automobile which plaintiff in error was driving when chased by the officers? The prosecuting attorney, over the objection of the accused, was permitted by trial court to ask and have answered by a witness called on behalf of the state the following question:

"What was in the car? A. Why, there was about 768 pints of whisky."

Counsel for plaintiff in error maintain that this evidence was irrelevant and immaterial to the issue at bar; that it tended only to prove a separate and independent offense; and that its reception by the trial court served no purpose whatsoever other than to prejudice the jury against their client.

It is undoubtedly the law of this state that proof of separate and independent crimes, with some exceptions, should be excluded as having a tendency only to prejudice the jury. Coble v. TheState, 31 Ohio St. 100. But, evidence offered by the state, which tends to prove one or more of the essential facts laid in the indictment, should not be excluded by the trial court simply because it tends to prove the commission by the accused of another independent crime.

In the instant case it was of much moment to the state to show where the revolver was located while the automobile was in Hancock county. And as the accused entered and left Hancock county in an automobile, it would seem proper for the state to inquire concerning it, that is to say, its make, its speed, who drove it, who and what was in it, and all such other inquiries as would tend to prove the guilt or innocence of the accused as charged. We therefore find that this contention is not well taken.

3. Is there sufficient evidence tending to prove beyond a reasonable doubt that Schraeder carried, in Hancock county, the revolver concealed on or about his person?

The evidence discloses that the accused and a companion, on July 15, 1927, were, in Hancock county, transporting whisky in a Cadillac coupe; that the sheriff's office, being so advised, sought to and did locate said automobile; that at the time the deputy sheriffs caught sight of the Cadillac coupe, it was standing on a north and south road about a mile east of the west county line of Hancock county; that at that time the accused and his companion were moving whisky from the rear to the front of the automobile; that upon the approach of the sheriff's car the accused started his car, and with his companion, fled at a rapid rate of speed north for several miles, and then turned west and drove out of Hancock county into Putnam county; that, after going about two miles in Putnam county, the accused, while his automobile was going about 40 miles per hour, got out on the left running board and leaped from his car to the roadway; that as he jumped he threw a .32-.20 Colt revolver, loaded with five cartridges, into the weeds and ran into a cornfield; that the Cadillac coupe was never out of sight of the deputies from the time they saw it standing on the north and south road until abandoned, and did not stop until accused leaped from it; that no one approached it during the chase; that accused was captured a few hours after entering the cornfield, and, when asked about the revolver, stated that he had it in a pocket attached to the inside of the left front door of his automobile and when he left the car took it with him for the purpose of "ditching" it.

The only logical and reasonable conclusion to be deduced from these facts, as we see it, is that the revolver was hidden in the automobile pocket during the chase in Hancock county. But, was the revolver, while in Hancock county, within the purview of Section 12819, General Code, concealed on or about the person of the accused?

This question, to our knowledge, has never been determined by the courts of Ohio.

Our Supreme Court, in State v. Nieto, 101 Ohio St. 409, 417,130 N.E. 663, 668, held that one of the meanings of the word "``carry' is ``to have or bear upon or about one's person * * * as, to carry a watch,'" but in that case the accused was lying on a cot in a bunkhouse and when turned over by the officers a pistol, containing four loaded cartridges, dropped out of his right-hand pocket on the bunk upon which he was lying, and the question was whether locomotion is a necessary and essential element of the crime of carrying concealed weapons. The Nieto case, supra, is therefore, as we see it, not an authority here.

There are, however, certain fundamental rules of statutory construction which are very helpful in the solution of the problem here. In substance, they are that words in a statute should be construed as they are generally understood, and that effect must, if possible, be given to each and every word of an act. Lewis' Sutherland, Statutory Construction, vol. 2, pp. 731-749.

Applying these rules to the language under consideration, we conclude that our Legislature did not intend to use the words "on" and "about" in the phrase "on or about his person as interchangeable terms. As we see it, the word "on," in the expression "on or about his person," means connected with or attached to, while the word "about" means near by, close at hand, in reach of. People v. Niemoth, 322 Ill. 51, 152 N.E. 537;Welch v. State, 97 Tex. Cr. R., 617, 262 S.W. 485.

We appreciate that there are decisions in other jurisdictions utterly irreconcilable with the holding here.Cunningham v. State, 76 Ala. 88; State v. Brunson, 162 La. 902,111 So. 321, 50 A.L.R., 1531; Sutherland v. Commonwealth,109 Va. 834, 65 S.E. 15, 23 L.R.A. (N.S.), 172, 132 Am. St. Rep., 949. But these decisions are, in turn, in conflict with Paulk v.State, 97 Tex. Cr. R., 415, 261 S.W. 779; State v. Mulconry (Mo.Sup.), 270 S.W. 375; Armstrong v. State, 98 Tex. Cr. R., 335,265 S.W. 701; Barton v. State, 66 Tenn. 105; and State v.McManus, 89 N.C. 555 — which are authorities supporting the pronouncement here.

In the instant case, the revolver during the chase was hidden in the pocket attached to the inside of the left front door of the Cadillac coupe, and immediately beside the accused, who was driving the car, and, in our opinion, therefore, was, within the purview of Section 12819, General Code, concealed about his person.

We have carefully considered the other assignments of error to which our attention has been directed, and find that they are not well taken.

Holding these views, it follows that the judgment of the court of common pleas should be affirmed.

Judgment affirmed.

CROW and HUGHES, JJ., concur.