Joseph v. State, 48020

• Decision Date: 26 August 1974
• Docket Number: No. 48020,48020
• Citation: 299 So.2d 211
• Parties: Little R. JOSEPH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 211

299 So.2d 211

Little R. JOSEPH v. STATE of Mississippi.

No. 48020.

Supreme Court of Mississippi.

Aug. 26, 1974.

Dyer, Dyer & Dyer, Greenville, for appellant.

A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

WALKER, Justice:

Little R. Joseph was convicted in the Circuit Court of Sharkey County, Mississippi, of the crime of carrying a concealed weapon and fined $400 and costs. From that judgment, Joseph prosecutes this appeal.

Little R. (Rocking Joe) Joseph, the appellant, is forty-six years of age, has lived in Cleveland, Mississippi, since 1967 and has been a 'disc jockey' for sixteen years. He had traveled from his home in Cleveland, Mississippi to Rolling Fork, Mississippi, a distance of about 85 miles, almost every Saturday for the past two years for the purpose of conducting a Saturday night record hop as a disc jockey. On Saturday, June 9, 1973, appellant made his usual trip to Rolling Fork, conducted a record hop and was returning to his home in Cleveland at approximately 1:30 a.m. Sunday morning when he was 'flagged down' on Highway 61 between Anguilla and Rolling Fork by a motorist whose lights had failed. About ten seconds after appellant stopped, the highway patrolmen pulled up and stopped in between the two parked cars. While making their investigation, one of the officers noticed a pistol in Joseph's vehicle which he testified was wedged in the crack between the cushions of the front seat with all but the butt plate concealed. Appellant was then arrested and charged with carrying a concealed weapon.

Appellant contends that he carried the pistol for protection while he was traveling and that he was not a tramp and had a right under Mississippi Code Annotated section 97-37-9 (1972) to carry a weapon, whether concealed or not.

Mississippi Code Annotated section 97-37-1 (1972) makes it unlawful to carry concealed a 'pistol, revolver, etc.' and prescribes the penalties for a violation thereof, while section 97-37-9 provides that:

Any person indicted or charged for a violation of section 97-37-1 may show as a defense:

(a) That he was threatened, and had good and sufficient reason to apprehend a serious attack from any enemy, and that he did so apprehend; or

(b) That he was traveling and was not a tramp, or was setting out on a journey and was not a tramp; or

(c) That he was a law enforcement or peace officer in the discharge of his duties; or

(d) That he was at the time in the discharge of his duties as a mail carrier; or

(e) That he was at the time engaged in transporting valuables for an express company or bank; or

(f) That he was a member of the armed forces of the United States, National Guard, State Milita, Civil Defense Corps, guard or patrolman in a state or municipal institution while in the performance of his official duties; or

(g) That he was in lawful pursuit of a felon; or

(h) That he was lawfully engaged in legitimate sports; or

(i) That at the time he was a company guard, bank guard, watchman or other person enumerated in section 97-37-7 and was then actually engaged in the performance of his duties as such, and then held a valid permit from the sheriff or the secretary of state to carry the weapon.

And the burden of proving either of said defenses shall be on the occused. (Emphasis added.)

It is readily apparent that appellant was not a tramp as the evidence showed that he had about $100 on his person and was transporting a large amount of musical equipment valued at $4,000 which he uses in his business as a disc jockey.

The only real question for determination is whether appellant was 'traveling' within the meaning of section 97-37-9(b).

In Morgan v. Heidelberg, 246 Miss. 481, 150 So.2d 512 (1963), this Court defined 'traveling' as follows:

The traveling or setting out on a journey, intended by the statute to be an excuse for carrying a concealed weapon, means a travel of such distance as to take one beyond the circle of his friends and acquaintances. (246 Miss. at 491, 150 So.2d at 516.)

In Patterson v. State, 251 Miss. 565, 170 So.2d 635 (1965), the Court had before it a strikingly similar factual situation to the present case. There, the Court reversed holding that the trial court should have granted the peremptory instruction requested by appellant on proof that the appellant was traveling in the vicinity of Highway 49 near Mendenhall, Mississippi, on a journey from his residence in Hattiesburg to D'Lo, Simpson County, Mississippi, his past residence being a distance of 62 miles. The proof in that case showed that Patterson had $61 in bills on him, $20...