Mularkey v. State
| Decision Date | 01 April 1930 |
| Citation | 230 N.W. 76,201 Wis. 429 |
| Parties | MULARKEY v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Writ of error to review a judgment of the Circuit Court for Marquette County; Clayton F. VanPelt, Circuit Judge.
Affirmed.
Prosecution commenced July 31, 1929, on the charge that the plaintiff in error, hereinafter called the defendant, on July 25, 1929, did go armed with a concealed and dangerous weapon, in violation of section 340.69, Stats. Upon a jury's verdict finding the defendant guilty, judgment of conviction and sentence was entered on October 1, 1929.Vincent F. McNamara, of Montello, for plaintiff in error.
John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and K. J. Callahan, Dist. Atty., of Montello, for the State.
Defendant contends that the court erred in admitting certain testimony; in refusing to dismiss the prosecution and discharge the defendant; in refusing to give certain requested instructions to the jury; and in giving certain instructions. Upon reviewing the record, we find no error in any respect.
Although there was a conflict in the evidence, it fairly and reasonably permitted the jury to consider the following facts established. At the time and place charged, the defendant, during an altercation, turned to his automobile and took a 32-Colt automatic revolver from a holster which was on a small shelf behind, and about five inches below, the back of the seat. The revolver had not been visible from the front of the automobile, and it had not been observed by the witnesses, who were present, until defendant took it out of the automobile. There was no proof that the revolver was loaded, or used to strike, or pointed at any one with a threat indicating an intention to shoot. The principal contention of the defendant is that to sustain a conviction under section 340.69, Stats., which provides that “any person who shall go armed with any concealed and dangerous weapon shall be punished,” it must be established that the concealed weapon, if a gun, was dangerous because it was, in fact, loaded. He contends that an unloaded revolver, which was not used as a bludgeon, is not a dangerous weapon; and that, in order to establish that it was a dangerous weapon, “it is incumbent upon the State to show that the same was loaded, or that it was pointed at the complaining witness within shooting distance with a threat or other words indicating an intention to fire, and that the complaining witness did not know but what it was loaded, or that the gun was used as an instrument to strike the complaining witness”; that the jury should have been instructed to that effect, as requested by defendant; and that, because there was no proof of any such facts as are stated in the requested instructions, the defendant should have been acquitted.
[1] Those contentions and the requested instructions are based on what was said in Lipscomb v. State, 130 Wis. 238, 109 N. W. 986, and Schiner v. State, 178 Wis. 83, 189 N. W. 261, as to what constitutes a dangerous weapon, as that term is used in section 340.39, Stats. That section authorizes a severe maximum penalty of thirty years for an assault and felonious robbery from the person, committed while armed with a dangerous weapon, with intent, if resisted, to kill or maim the person robbed.
The requested instructions would have been proper if the prosecution in the case at bar had been under section 340.39, Stats. However, there is a well recognized distinction between the meaning of the terms “dangerous weapon” or “deadly weapon,” when used in statutes like section 340.39, and when used in statutes like section 340.69, prohibiting going armed with or the carrying of such weapons when concealed.
“A peculiarity of the law concerning deadly weapons is that while it may be held that an assault committed with an unloaded revolver is not an assault with a deadly weapon, yet under a statute against carrying concealed deadly weapons an unloaded revolver is usually held to be such a weapon.” 8 R. C. L. p. 289, § 310.
See, also, State v. Wardlaw, 43 Ark. 73; State v. Duzan, 6 Blackf. (Ind.) 31; Ridenour v. State, 65 Ind. 411;Caldwell v. State (Tex. Cr. App.) 106 S. W. 343;Hathcock v. State, 99 Ark....
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State v. Grandberry
...when a person "goes armed" with a concealed and dangerous weapon for purposes of the Concealed Carry Statute. Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930) ("[T]he driver of an automobile goes armed, within the meaning of [the Concealed Carry Statute], when he has a dangerous wea......
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State v. Fry
...was occupied. This testimony allegedly precludes a finding that the weapon was "within his reach," as required by Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930). The elements of the crime of carrying a concealed weapon are: (1) the defendant had a dangerous weapon on his person or......
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State v. Hamdan, 01-0056-CR.
...Id. (citing Asfoor, 75 Wis. 2d at 433). Third, the State must show that the weapon was concealed. Id. (citing Mularkey v. State, 201 Wis. 429, 432, 230 N.W. 76 (1930)). Over the years, every element of the statute has been vigorously ¶ 21. Hamdan asks the court to withdraw a series of appel......
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Ensor v. State
...view to constitute a "concealed weapon" for purposes of prosecution under the respective statutes. 3 For example, in Mularkey v. State, 201 Wis. 429, 230 N.W. 76 (1930), the defendant reached into his automobile during an altercation and withdrew a .32 Colt automatic revolver from a small s......