Gray v. State

• Decision Date: 23 January 1974
• Docket Number: No. 2--673A143,2--673A143
• Citation: 305 N.E.2d 886,40 Ind.Dec. 410,159 Ind.App. 200
• Parties: Willie Lee GRAY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 886

305 N.E.2d 886

159 Ind.App. 200

Willie Lee GRAY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--673A143.

Court of Appeals of Indiana, Second District.

Jan. 23, 1974.

David F. McNamar, Steers, Klee, Sullivan & LeMay, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

SULLIVAN, Presiding Judge.

Defendant-appellant Gray was convicted of carrying a pistol without a license and was sentenced to one year imprisonment.

The controlling statute at the time of the offense, IC 35--23--4--3, Ind.Ann.Stat. § 10--4736 (Burns 1956) provided:

'No person shall carry a pistol in any vehicle or on or about his person, except in his place of abode or fixed place of business, without a license therefor as hereinafter provided.'

The following section, however, contains an exception (IC 35--23--4--4, Ind.Ann.Stat. § 10--4737 (Burns 1956)) as follows:

'The provisions of the preceding section ( § 10--4736) shall not apply to . . . any person while carrying a pistol unloaded and in a secure wrapper from the place of purchase to his home or place of business, or to a place of repair or back to his home or place of business or in moving from one place of abode or business to another.' ¹

In the cause before us, Gray was operating his automobile on the evening of June 21, 1972 in Indianapolis and was stopped by a police officer because Gray and two other occupants of the vehicle approximated a description of three suspected robbers. When Gray stepped out of his car at the officer's request, Gray advised the officer that he had a pistol in his belt and when asked acknowledged that he did not have a permit for the firearm.

Gray seeks reversal upon two theories:

(1) The evidence was insufficient to show that at the time carried, the weapon was loaded; and that as permitted by statute, he was transporting the unloaded pistol from his place of business to his home in a secure wrapper.

(2) The one year sentence imposed was arbitrary and capricious in that the trial judge failed to utilize the alternative penalty provided, i.e., a fine.

EVIDENCE WAS SUFFICIENT TO ESTABLISH GUILT OF DEFENDANT

Gray argues that the State failed to prove that the pistol he carried was loaded. He points out that the officer merely stated that he obtained the pistol from Gray and he identified six rounds of ammunition which at the time of trial were in a marked envelope. The officer did not specifically state that the ammunition was in the weapon at the time of confiscation. His precise testimony on this point is as follows:

'Q. Officer, I'm going to hand you what has been marked, for identification purposes only, as 'State's Exhibit One (1)', and ask if you can identify it?

A. Yes, I can. It's marked with my initials, D.A.H.; dated 6--21--72; it's a Rhone '22 caliber pistol, and the envelope contains six (6) live rounds of ammunition.

Q. Where did you obtain this?

A. From Mr. Willie Gray.

MR. LITTLE: At this time, subject to objection, the State offers into evidence, what has been marked, 'State's Exhibit One (1)'.

MR. SOBEL: No objection.

THE COURT: Alright, show it in evidence.

WHEREUPON, 'STATE'S EXHIBIT NUMBER ONE (1)', IDENTIFIED BY WITNESS AS A RHONE '22 CALIBER PISTOL, AND ENVELOPE

CONTAINING SIX (6) LIVE ROUNDS OF AMMUNITION, WAS ADMITTED INTO EVIDENCE, WITHOUT OBJECTION.'

As stated in Day v. State (1968) 251 Ind. 399, 241 N.E.2d 357:

'When an offense is created by statute and another statute or another section of the same statute makes exceptions thereto, it is not necessary for the prosecution in the indictment or affidavit to negate the exception by stating that the defendant does not come within the same. That being true, then it is not incumbent upon the state to prove the exceptions if they need not be alleged in the charge.'

Here, therefore, the State was not required to prove that Gray's pistol was loaded.

Be that as it may, the exception within which Gray claims to fall requires not only that the weapon be unloaded but also that it be carried in a secure wrapper.

Gray contends that since the phrase 'secure wrapper' as used in the Firearms Act has not been judicially construed, we should classify the weapon here as having been securely wrapped, i.e., confined at his side by his belt and clothing. Whatever else may be construed as a secure wrapper, we hold that a pistol is not in a 'secure wrapper' when it is merely carried in the possessor's belt where it is as readily accessible as if it were contained in a holster on the carrier's person. We have no doubt that it was the intent of the Legislature in this regard to safeguard not only the public at large, but those who seek to transport firearms from self-inflicted wounds. We therefore hold that the 'secure wrapper' contemplated by the statute must be such as to prevent immediate or ready access to the injurious capabilities of weapons thus carried.

Gray did not have his pistol in a 'secure wrapper'. The evidence was

therefore sufficient to support conviction.

THE SENTENCE IMPOSED WAS WITHIN THE COURT'S

DISCRETION AND WAS NOT ERRONEOUS

The provision controlling the penalty imposed for Gray's offense was Ind.Ann.Stat. § 10--4747 ² (Burns 1956) and authorized a fine on not more than $1,000.00 or imprisonment for any determinate period of not less than one year nor more than ten years.

At the time of sentencing, Gray's counsel inquired whether the Court would consider imposition of a fine. The Court declined to do so and referring to Tate v. Short (1971) 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 stated:

'THE COURT: Well, there's a fellow by the name of Tate, who took a fellow by the name of Short, to the United States Supreme Court, and hurt a lot of poor people like your client.'

The colloquy continued as follows:

'MR. SOBEL: Your Honor, he could pay a fine, if there was a fine imposed. He has a good job, and he's had that job for a year.

THE COURT: I think that any fine I would impose in here would be unfair, and it would be burdensome, and beyond his capacity to pay.

MR. SOBEL: We discussed figures up to a Thousand Dollars. He has a good job, and he will lose the job. His employer stated that he was an exceptional employee.

THE COURT: One (1) year less one (1) day. He's your's, Sheriff.'

We would agree with appellant that the statements of the trial court hereinabove set forth would seem to indicate a mis-interpretation of the Tate case. The United States Supreme Court there held merely that it was constitutionally impermissible to convert a fine imposed into a term of imprisonment for a defendant unable to pay the fine. The fact remains however, that the statute here permits the court to impose either a fine or imprisonment.

Our Supreme Court in Gingerich v. State (1948), 226 Ind. 678, 83 N.E.2d 47 held that the constitutional prohibition against cruel and unusual punishment is a limitation upon the acts of the General Assembly and not upon the discretion of a trial court acting within the framework of a statute imposing penalties for the offense. Where, as here, the penalty assessed is in keeping with that prescribed by the legislature, we cannot interfere. We may not rewrite the statute nor absent an abuse of discretion substitute what we deem to be a more equitable penalty. See McHaney v. State (1972 Ind.App.) 288 N.E.2d 284; Landaw v. State (1972) Ind., 279 N.E.2d 230.

The judgment is hereby affirmed.

BUCHANAN, J., concurs.

WHITE, J., concurs, with separate opinion.

WHITE, Judge (concurring).

I agree that the appellant has failed to make a sufficient showing of abuse of discretion in sentencing to justify any interference at the appellate level. I would, however, reserve for future decision the question of what our role is in the 'review and revision of sentences for defendants in all criminal cases', as provided for in Article 7, sections 6 and 4, Constitution of Indiana, as amended November 3, 1970, effective January 1, 1972. Neither McHaney v. State (1972), Ind.App., 288 N.E.2d 284, 33 Ind.Dec. 298, nor Landaw v. State (1972), Ind., 279 N.E.2d 230, 29 Ind.Dec. 378, involved a question of the trial court's choice between alternative penalties authorized by statute and are therefore not in point here.

Article 7, section 4, Constitution of Indiana, as amended November 3, 1970, effective January 1, 1972, includes the provision that '(t)he Supreme Court shall have, in all appeals of criminal cases, the power to review all questions of law and to review and revise the sentence imposed.'

The pertinent comment of the Judicial Study Commission which drafted section 4 is:

'In all criminal appeals before the Supreme Court (direct appeals from a trial court as well as those from the Court of Appeals), the Supreme Court has the power to review questions of law and to review and revise sentences. The proposal that the appellate power in criminal cases include the power to review sentences is based on the efficacious use to which that power has been put by the Court of Criminal Appeals in England.'

Section 6 of this new judicial article of our state constitution provides that in all cases other than direct review of administrative decisions, the Court of Appeals

'shall exercise appellate jurisdiction under such terms and conditions as the Supreme Court shall specify by rules which shall, however, provide in all cases an absolute right to one appeal and to the extent provided by rule, review and revision of sentences for defendants in all criminal cases.'

The pertinent commission comment is:

'Criminal cases, not directly appealable to the Supreme Court, and authorized by rule to be reviewed by the Court of Appeals shall have such kind of review as the rule permits.'

Appellate Rule 4 provides:

'(A) . . .. The Supreme Court shall have exclusive jurisdiction of:

'(7) Appeals in criminal cases from judgments (sentences) imposing a sentence of...