McIntire v. State

• Decision Date: 11 March 1908
• Docket Number: No. 21,068.,21,068.
• Citation: 83 N.E. 1005,170 Ind. 163
• Parties: McINTIRE v. STATE.
• Court: Indiana Supreme Court

170 Ind. 163

83 N.E. 1005

McINTIRE

v.STATE.^*

No. 21,068.

Supreme Court of Indiana.

March 11, 1908.

Appeal from Circuit Court, Marion County; Wm. Irwin, Judge.

Edward R. McIntire was convicted of carrying concealed weapons, and appeals. Affirmed.

Chas. Martindale, for appellant. Jas. Bingham, Atty. Gen., Alexander G. Cavins, Edward M. White, and Henry M. Dowling, for the State.

MONKS, C. J.

Appellant was convicted of the offense of carrying “concealed upon his person a dangerous and deadly weapon, to wit, a revolver,” in violation of that part of section 2345, Burns' Ann. St. 1908 (section 2094, Burns' Ann. St. Supp. 1905), section 449 of “An act concerning public offenses” (Acts 1905, p. 687, c. 168), which reads as follows: “Every person, not being a traveler, who shall wear or carry any dirk, pistol, bowie knife, dagger, sword in cane or any other dangerous or deadly weapon concealed, *** shall, on conviction, be fined not exceeding five hundred dollars. ***”

The errors assigned call in question the action of the court in overruling appellant's motion for a new trial. In State v. Mitchell, 3 Blackf. 229, the lower court sustained a motion to quash an indictment charging a violation of section 58 of “An act relating to crime and punishment” approved February 10, 1831 (Rev. St. 1831, p. 192, c. 24), which was substantially the same as the part of said section 2345 (section 2094) set out above, and read as follows: “That every person, not being a traveler, who shall wear or carry any dirk, pistol, sword in a cane, or other dangerous weapon concealed, shall, upon conviction thereof, be fined in any sum not exceeding one hundred dollars,” on the ground that the same was unconstitutional. This court held in said case, which was decided in 1833, that said section 58 was not unconstitutional. The provisions of the Constitution of this state, being the Constitution of 1816 then in force on the subject of bearing arms, were as follows: “Article 1, § 20. That the people have a right to bear arms for the defense of themselves and the state; and that the military shall be kept in strict subordination to the civil power.” Rev. St. 1831, pp. 40, 41. Said section 20 of article 1 of the Constitution of 1816 was readopted as sections 32 and 33 of the Constitution of 1851, which took effect November 1, 1851, and is now in force, and reads as follows:

“Sec. 32. The people shall have a right to bear arms for the defense of themselves and the state.

“Sec. 33. The military shall be kept in strict subordination to the civil power.”

Sections 77, 78, Burns' Ann. St. 1901; Rev. St. 1881.

It has been held that, when a clause or provision of a Constitution or statute has been readopted after the same has been construed by the courts of such state, it will be concluded that it was adopted with the interpretation and construction which said courts had enunciated. City of La Porte v. Gamewell, etc., Co., 146 Ind. 466, 469, 45 N. E. 588, 35 L. R. A. 686, 58 Am. St. Rep. 359;Board v. Conner, 155 Ind. 484, 496, 58 N. E. 828, and authorities cited; Endlich on Interp. of Stat. § 530; 2 Sutherland, Stat. Const. (2d Ed.) § 403, p. 781; Morton v. Broderick, 118 Cal. 474, 483, 484, 50 Pac. 644, and authorities cited. Statutes regulating and prohibiting the carrying of concealed weapons have been held constitutional in other states. 2 Wharton, Crim. Law (10th Ed.) § 1557, and notes; Bishop, Stat. Crimes (3d Ed.) § 793; 2 McClain, Crim. Law, § 1030; 1 Cent. L. J. 259-261, 273-275, 285-287, 295, 296.

Counsel for appellant concedes that “the Legislature has the power to regulate the manner in which arms shall be borne by the people, but contends that the Legislature has no power to deprive a peace officer of the state of the constitutional right to carry a revolver concealed upon his person while in the exercise of his statutory duties; that said section 2094, supra, as applied to the peace officers of the state, is in violation of said section 32, art. 1, of the Constitution, supra.” This contention is based upon the theory that the evidence shows that at the time appellant carried “concealed upon his person a revolver,” as alleged in the affidavit, he was a deputy constable in the discharge of his official duties, and, as such, a peace officer of the state.

The cause was submitted to the court upon an agreed statement of facts. So far as this question is concerned the agreed statement of facts is that appellant was “at the time of his arrest a duly appointed...