Pierce v. State , 42 Okla. Crim. 272 ( 1929 )

The plaintiff in error, hereinafter referred to as defendant, was tried in Ellis county, Okla., on the 9th day of August, 1926, upon an information filed in the county court charging the defendant with unlawfully, willfully, and wrongfully carrying upon and about his (the said Fritz Pierce's) person, a Colt's automatic revolver, without authority of law, and contrary to the statute in such cases made and provided.

The defendant was found guilty, and was sentenced to pay a fine of $25, from which judgment of the court the defendant appeals.

The facts as disclosed by the evidence of the state are: That J.A. Hanley, Mr. Devenney, and Mr. Thoroughman had gone to the premises of the defendant for the purpose of searching for a still. The officers had a search warrant to search the premises of the defendant, and, upon their arrival at the premises of the defendant, the defendant came to the door and had a gun on his person, on his right side in the top of his pants, stuck down under his belt, extending inside of his trousers, about half of the gun being visible. That this was an automatic revolver, about a .38. That, during the time the officers were present on the premises of the defendant, the defendant came out in the yard with his gun, and made trips into the house and out into the yard at different times during the time the search was being made. At the time the officers were ready to leave, one of the officers took the gun off the person of the defendant. No effort was made by the defendant to use the gun, but he claimed that he had the gun because he had heard that he was liable to be robbed, and that he had some money about his premises, and that he purchased the gun and kept it for the purpose of protecting himself against any intruders who might attempt to rob him.

There is but one question raised in the brief of the defendant, and that question is whether of not, under the Constitution and laws of the state of Oklahoma, the defendant had a right to carry a gun on his person while in his own house and yard.

The defendant in his brief states his allegation of error in the following language:

"All assignments will be considered in one assignment. That under the Constitution (Bill of Rights) Sec. 26, of Article 2, the defendant committed no offense, and the evidence is insufficient to sustain a conviction."

This contention presents squarely to this court the question of whether the Constitution and laws of the state of Oklahoma prevent any person from carrying any pistol, revolver, bowie knife, dirk knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon on his person while in his house or in the curtilage of his premises, and whether he may be convicted and punished for the act under the Constitution and laws of this state.

Section 26, article 2, of the Constitution of Oklahoma, reads as follows:

"The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereupon legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons."

The defendant is prosecuted under section 1992, C.O.S. 1921, which provides as follows:

"It shall be unlawful for any person in the state of Oklahoma to carry upon or about his person any pistol, revolver, bowie-knife, dirk-knife, loaded cane, billy, metal knuckles, except as in this article provided."

Section 1994, C.O.S. 1921, provides:

"Public officers while in the discharge of their duties or while going from their homes to their place of duty or returning therefrom shall be permitted to carry arms, but at no other time and under no other circumstances: Provided, however, that if any public officer be found carrying such arms while under the influence of intoxicating drinks, he shall be deemed guilty of a violation of this article as though he were a private person."

Section 1995, C.O.S. 1921, provides:

"Persons shall be permitted to carry shot-guns or rifles for the purpose of hunting, having them repaired, or for killing animals, or for the purpose of using the same in public muster or military drills, or while traveling or removing from one place to another and not otherwise."

The defendant does not come within any of the exceptions mentioned in such statutes.

In the case of Ex parte Thomas, 1 Okla. Crim. 210, 97 P. 260, 20 L.R.A. (N.S.) 1007, in the syllabus of the case, this court held:

"The provisions of the Statutes of Oklahoma (sections 2502, 2503, Wilson's Rev. Ann. St. Okla. 1903) prohibiting the carrying of the weapons therein set out are not repugnant to each other, or violative of section 26 of article 2 of the Bill of Rights of the Constitution of Oklahoma, but the valid provisions of such statutes extended to and put in force in the state by the provisions of section 21 of the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 277) and section 2 of the Schedule of the Constitution."

The body of the opinion enlarges and discusses at length the right to carry a pistol or a concealed weapon. The court says the question now arises: "Is a pistol the character of arms in contemplation of the constitutional convention and of the people of the state when they declared that the right of a citizen ``to carry and bear arms,' etc., ``shall never be prohibited.' We hold that it is not and most of the states where it has been passed upon support us in this conclusion. Bishop on Statutory Crimes, § 793; Andrews v. State, 3 Heisk. (Tenn.) 165, 8 Am. Rep. 8; Fife v. State,31 Ark. 455, 25 Am. Rep. 374; Aymette v. State, 2 Humph. (Tenn.) 154; Hill v. State, 53 Ga. 472; City of Salina v. Blaksley,72 Kan. 230, 83 P. 619, 3 L.R.A. (N.S.) 168, 115 Am. St. Rep. 196, 7 Ann. Cas. 925."

In Mathews v. State, 33 Okla. Crim. 347, 244 P. 56, the court said:

"The provisions of the statutes of Oklahoma (sections 1991, 1992, C.O.S. 1921), prohibiting the carrying of the weapons therein set out, are not violative of section 26 of article 2 (Bill of Rights) of the Constitution of Oklahoma."

"The evidence is brief, and is, in substance, that the defendant is a practicing attorney of Payne county; that at the time the offense is charged the defendant appeared before a justice of the peace at Stillwater as attorney for some persons in that court, and at the time had in his right-hand coat pocket a revolver, the barrel of which protruded through the pocket and was exposed. The defendant admitted that he carried the pistol as alleged, * * * and that he carried the pistol for his protection. The contention is advanced that, under section 26 of the Bill of Rights of the state Constitution, he had a right to carry the pistol for his protection. This section of the Constitution is as follows: ``The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.' The prosecution was conducted under section 1991, Comp. Stat. 1921, which is: ``It shall be unlawful for any person in the state of Oklahoma to carry concealed on or about his person, saddle or saddle bags, any pistol, revolver, bowie-knife, dirk, dagger, slung-shot, sword-cane, spear, metal knuckles or any other kind of knife or instrument manufactured or sold for the purpose of defense, except as in this article provided.' The Supreme Court had occasion to construe this statute in the case of Ex parte Thomas, 1 Okla. Crim. 210,97 P. 260, 20 L.R.A. (N.S.) 1007, in which case it was held that the right to bear arms as provided by section 26 of the Constitution, supra, has reference to arms of a military character, such arms as are used for purposes of war, and does not prevent the Legislature from prohibiting the carrying of weapons such as may be concealed about the person and used in private quarrels, and which do not contribute to the common defense; that the Legislature, in the exercise of the police power of the state, without any infringement of the constitutional rights of the citizens, may prohibit and punish the promiscuous carrying of arms. That case was approved and followed by this court in the case of Beard v. State, 7 Okla. Crim. 154, 122 P. 941. We adhere to the principles of law announced in those cases."

In 40 Cyc. pp. 856 to 864, inclusive, in discussing "Place and Manner of Carrying," we have this language:

"Under statutes making it an element of the offense of carrying a weapon that it be carried on or about the person, it is so carried when it is in the hand, or clothing of accused, or in a basket carried in his hand, or upon or under the seat of the vehicle in which he is riding, but not when it is in some other part of the vehicle. It is immaterial what locality a person is in when carrying a weapon, except where the statute expressly allows one to carry a weapon on his own premises or about his place of business, or except where it is a distinct statutory offense to carry a weapon to certain public places, assemblies, or gatherings. Neither is it material that the time and distance the weapon is carried is short, where it is wholly within the possession of accused during that time."

Section 40 of article 5 of the Constitution of Oklahoma provides:

"The Legislature shall provide for organizing, disciplining, arming, maintaining, and equipping the militia of the state."

Herein is shown clearly that the Constitution contemplates the maintenance of a militia, and, taking this in connection with the other provisions and the views expressed by the courts from whose decisions we have quoted and the history of and ends to be attained by the arms-bearing provisions, we believe there is no room for doubt that the arms defendant had a right to bear, and which right could never be prohibited him, relates solely to such arms as are recognized in civilized warfare and not those used by the ruffian, brawler, or the assassin.

Under article 2, § 26 (Bill of Rights), of the Constitution of Oklahoma, the Legislature has power to not only prohibit the carrying of concealed or unconcealed weapons described in sections 1991, 1992, C.O.S. 1921, but also has the power to even prohibit the ownership or possession of such arms. Some of the states under similar constitutional provisions have prohibited the ownership, but the Legislature of Oklahoma has not seen fit to go that far. As the law now is in this state, a person may lawfully own and possess any of the weapons in sections 1991, 1992, and may move such weapons from room to room in their place of residence, but may not wear them on their person and transport them about the yard as shown by the evidence to have been done by the defendant in this case.

In the trial of the case, the defendant testified substantially as follows:

"That he was a single man living alone, and a friend of his told him that three fellows, which were named, intended to rob or hi-jack him, and that he purchased this pistol about six weeks before the officers came down to search, and had the pistol on his person, but had never carried it off the premises, that this was his only home, had lived at this place over a year, and owned other lands, but rented the lands out, that this place was a rented place, with only a house and small yard. That Jess Miles told him that Boyd wanted Miles to help hi-jack defendant, and defendant says he always had about $100.00 about his house. Defendant says he never threatened any one, told the officers to come in and search but they found nothing in the way of whisky or liquor."

In the case of Shepherd v. State, 35 Okla. Crim. 405,192 P. 235, this court held:

"In a prosecution for carrying a concealed weapon, an offered defense that the revolver which defendant was carrying concealed on his person was a 44-caliber gun commonly known as an ``army gun,' and was carried to resist a threatened attack on his life, was not a sufficient defense."

There being no question of fact in this case, but merely one of law, we hold that the defendant was properly convicted of unlawfully carrying a revolver.

The judgment is therefore affirmed.

EDWARDS, P.J., concurs.