Brown v. United States.

• Decision Date: 17 May 1949
• Docket Number: No. 776.,776.
• Citation: 66 A.2d 491
• Parties: BROWN v. UNITED STATES.
• Court: D.C. Court of Appeals

66 A.2d 491

BROWN

v.UNITED STATES.

No. 776.

Municipal Court of Appeals for the District of Columbia.

May 17, 1949.

Appeal from the Municipal Court for the District of Columbia, Criminal Division.

Andrew Lee Brown was convicted under an information charging him with carrying a pistol, and he appeals.

Reversed.

Charles H. Garlock, Washington, D. C., for appellant.

L. Clark Ewing, Assistant United States Attorney, Washington, D. C., with whom George Morris Fay, United States Attorney, and John D. Lane, Assistant United States Attorney, Washington, D. C., were on the brief, for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CAYTON, Chief Judge.

As a result of an argument in a taxicab in which defendant was riding with his wife and other persons, he was arrested and charged with carrying a dangerous weapon, a pistol, in violation of D.C. Code, 1940, Supp. VI, 22-3204. At the trial there was conflicting evidence as to whether defendant was actually carrying the pistol on his person or had happened to find it on the seat of the taxicab. The jury found him guilty and he brings this appeal.

The chief issue as presented by the briefs relates to the burden of proof. Appellant contends that the trial court erred in refusing to direct a verdict of acquittal since ‘the government had not maintained its burden by proving that defendant did not have a license to carry a gun.’ The government contends that once it had established a prima facie case, the burden was on defendant to show that he had a license. This was the tenor of the trial judge's instruction to the jury, which is also alleged as error by defendant. This issue as to the burden of proof depends in turn upon the definition and elements of the crime.

The information charged defendant with carrying a pistol ‘against the form of the statute in such case made and provided.’ It did not specifically charge carrying the pistol without a license. However, the sufficiency of the information was not challenged in the trial court and is not challenged here. The Code section which defendant was accused of violating provides:

‘No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without a license therefor issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed * * *.’

Appellant argues in substance that the crime is carrying the pistol without a license and that the lack of a license is an essential element of the crime. The government, on the other hand, maintains by implication that the mere carrying is the offense, that the existence of a license is an exception which may be used as a defense by the person accused and that it is his burden, once the gravamen of carrying the pistol has been established, to come forward and prove that he has a license.

The questions involved here have not been decided by any appellate court in the District of Columbia. In United States v. Waters, 73 F.Supp. 72, the United States District Court for the District of Columbia, ¹ (Laws, C.J.) decided that it was requisite that the government both allege in the indictment and assume the burden of proving affirmatively that the defendant did not have a license to carry a pistol. This decision was appealed by the United States Attorney to the United States Court of Appeals for the District of Columbia. That court in turn certified the case to the Supreme Court, holding that the government should have appealed to that Court directly. ² While the case was pending in the Supreme Court, announcement was made on November 22, 1948, that the appeal was dismissed ‘on motion of counsel for the appellant.' ³ Nevertheless the United States Attorney urges in the present case that the District Court's decision in the Waters case was wrong.

In certifying that case to the Supreme Court the United States Court of Appeals stated:

‘The view of the Government in drafting the indictment obviously was * * * that the gist of the offense under the wording of the statute was the carrying by a person within the District of Columbia of a pistol on or about his person and that this therefore was all that the Government had to allege in the indictment-that it need not allege non-possession of a license; that it was the intention of Congress under the statute that possession of a license was a matter of justification to be alleged and proved by the defendant. * * * The trial court held that under the statute as phrased the mere carrying of a pistol was not a criminal act-was not within the reach of the statute-that the criminal act denounced embraced the two elements of (1) carrying a pistol (2) without a license, and that hence both must be alleged. Clearly the trial court was determining the statute's meaning * * *.' ⁴ After studying the statute itself, the hearing before the Senate District Committee and the Senate and House Reports on the bill, we conclude that the offense is clearly the carrying of a pistol without a license. ⁵

The section prohibiting the carrying of a pistol without a license is part of a comprehensive statute approved July 8, 1932, 47 Stat. 650, ch. 465 and twice later amended. ⁶ Other sections include definitions (22-3201), regulations concerning the sale of pistols (22-3208), and excepted persons such as marshals, sheriffs, policemen, members of the Army, Navy and Marine Corps when on duty, and any person carrying a pistol, unloaded and wrapped, between a place of purchase or repair and his home or place of business (22-3205). The Superintendent of Police is the only official authorized to issue licenses (22-3206); certain other dangerous weapons are forbidden entirely (22-3214). The possession of pistols, except to persons previously convicted of crimes of violence is nowhere prohibited, and the original statute as passed in 1932 forbade only the carrying of an unlicensed pistol when concealed on the person. It was eleven years before Congress by amendment included the open carrying of an unlicensed pistol in the statute. ⁷

In the original bill it does not appear that Congress contemplated a prohibition against carrying pistols per se. Although the original draft contained a section entitled ‘Carrying Pistol’ (changed to ‘Carrying Concealed Weapons' in the final form) that section stated ‘No person shall carry a pistol * * * without a license * * *.’ The Senate Report states that the intent of the bill was ‘to provide a fair and effective control of the traffic in firearms' by means of ‘licensing of persons to carry pistols,’ ‘prohibiting possession of weapons for which there is no legitimate use,’ and ‘prohibiting possession of pistols by persons previously convicted of a crime of violence,’ among other features. ⁸ The mere carrying, even openly, was not prohibited. A recommendation that the statute read ‘a pistol or any deadly or dangerous weapon’ failed of enactment. One of the proponents of the bill remarked: ‘We think there is a legitimate use for pistols.' ⁹

In our opinion the qualifying phrase ‘without a license’ is not to be treated as an exception to the statute but rather as a descriptive part of the offense, an ‘adjectival’ or descriptive negative defining the corpus delicti. ¹⁰ The phrase is incorporated in the definition; it is an integral element of the crime. In this jurisdiction no blanket prohibition against carrying or possessing a pistol has yet been made despite the two amendments materially strengthening enforcement of its provisions. The statute being criminal, penal, prohibitive and in derogation of the common law, it must be given a strict rather than liberal construction. In so holding we are not oblivious of the danger of unlicensed pistol carrying in a modern, urban community, a fact clearly recognized and shown by the two amendments to the original statute. But we must apply the law as it is written, without undue extension by interpretation.

The elements of the crime being (1) the carrying of a pistol (2) without a license, the question then becomes whether the burden of proceeding may shift to the defendant once the prima facie case of carrying the weapon has been established. It is well settled that in certain criminal proceedings the burden of proceeding with the evidence may be shifted to a defendant. Among familiar examples are statutory presumptions under which proof of one or more facts is held to create a prima facie case. When these are proved, other facts may be presumed to be true unless the defendant rebuts such presumption. ¹¹ Another example is where a defendant relies upon an exception in a statute. Then it is the burden of the defendant to bring himself within the exception rather than...