Pierce v. State
| Decision Date | 16 March 1929 |
| Docket Number | A-6407. |
| Parties | PIERCE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Under section 1992, C. O. S. 1921, providing, "It shall be unlawful for any person in the State of Oklahoma to carry upon or about his person any pistol, revolver, bowie-knife dirk-knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided," held, that a defendant may be properly convicted of carrying on or about his person a revolver, and that the fact that the revolver is carried upon his person within the curtilage of his own premises is immaterial.
"Arms," as used in section 26, art. 2, of Constitution, does not include a pistol, only those which a militiaman ordinarily carries.
The provisions of the statutes of Oklahoma (sections 1991, 1992, Comp. Stat. 1921), prohibiting the carrying of the weapons therein set out, are not violative of section 26, art. 2 (Bill of Rights) of the Constitution of Oklahoma.
In a prosecution for carrying a weapon prohibited under section 1992, C. O. S. 1921, an offered defense that the revolver which defendant was carrying on his person was carried to protect himself from attack and from robbery was no defense.
Appeal from County Court, Ellis County; L. H. Clark, Judge.
Fritz Pierce was convicted of carrying a revolver upon and about his person, and he appeals. Affirmed.
C. B Leedy and L. E. Moyer, Jr., both of Arnett, for plaintiff in error.
Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter referred to as defendant, was tried in Ellis county, Okl., on the 9th day of August, 1926 upon an information filed in the county court charging the defendant with unlawfully, willfully, and wrongfully carrying upon and about his (the said Fritz Pierce's) person, a Colt's automatic revolver, without authority of law, and contrary to the statute in such cases made and provided.
The defendant was found guilty, and was sentenced to pay a fine of $25, from which judgment of the court the defendant appeals.
The facts as disclosed by the evidence of the state are: That J. A. Hanley, Mr. Devenney, and Mr. Thoroughman had gone to the premises of the defendant for the purpose of searching the premises for a still. The officers had a search warrant to search the premises of the defendant, and, upon their arrival at the premises of the defendant, the defendant came to the door and had a gun on his person, on his right side in the top of his pants, stuck down under his belt, extending inside of his trousers, about half of the gun being visible. That this was an automatic revolver, about a .38. That, during the time the officers were present on the premises of the defendant, the defendant came out in the yard with his gun, and made trips into the house and out into the yard at different times during the time the search was being made. At the time the officers were ready to leave, one of the officers took the gun off the person of the defendant. No effort was made by the defendant to use the gun, but he claimed that he had the gun because he had heard that he was liable to be robbed, and that he had some money about his premises, and that he purchased the gun and kept it for the purpose of protecting himself against any intruders who might attempt to rob him.
There is but one question raised in the brief of the defendant, and that question is whether or not, under the Constitution and laws of the state of Oklahoma, the defendant had a right to carry a gun on his person while in his own house and yard.
The defendant in his brief states his allegation of error in the following language:
This contention presents squarely to this court the question of whether the Constitution and laws of the state of Oklahoma prevent any person from carrying any pistol, revolver, bowie knife, dirk knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon on his person while in his house or in the curtilage of his premises, and whether he may be convicted and punished for the act under the Constitution and laws of this state.
Section 26, article 2, of the Constitution of Oklahoma, reads as follows: "The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons."
The defendant is prosecuted under section 1992, C. O. S. 1921, which provides as follows: "It shall be unlawful for any person in the State of Oklahoma to carry upon or about his person any pistol, revolver, bowie-knife, dirk-knife, loaded-cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided."
Section 1994, C. O. S. 1921, provides: "Public officers while in the discharge of their duties or while going from their homes to their place of duty or returning therefrom shall be permitted to carry arms, but at no other time and under no other circumstances: Provided, however, that if any public officer be found carrying such arms while under the influence of intoxicating drinks, he shall be demed guilty of a violation of this article as though he were a private person."
Section 1995, C. O. S. 1921, provides: "Persons shall be permitted to carry shot-guns or rifles for the purpose of hunting, having them repaired, or for killing animals, or for the purpose of using the same in public muster or military drills, or while traveling or removing from one place to another and not otherwise."
The defendant does not come within any of the exceptions mentioned in such statutes.
In the case of Ex parte Thomas, 1 Okl. Cr. 210, 97 P. 260, 20 L. R. A. (N. S.) 1007, in the syllabus of the case, this court held: "The provisions of the Statutes of Oklahoma (Sections 2502, 2503, Wilson's Rev. & Ann. St. Okla. 1903) prohibiting the carrying of the weapons therein set out are not repugnant to each other, or violative of section 26 of article 2 of the Bill of Rights of the Constitution of Oklahoma, but the valid provisions of such statutes extended to and put in force in the state by the provisions of section 21 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277) and section 2 of the Schedule of the Constitution."
The body of the opinion enlarges and discusses at length the right to carry a pistol or a concealed weapon. The court says the question now arises:
In Mathews v. State (Okl. Cr. App.) 244 P. 56, the court said:
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City of Seattle v. Montana
...right to bear arms for self-defense as "arms" included only those weapons used in civilized warfare); Pierce v. State, 42 Okla.Crim. 272, 278-79, 275 P. 393, 73 A.L.R. 833 (1929) ("arms" means military weapons in civilized warfare, not a pistol or the weapons of the ruffian, brawler or the ......