Schaaf v. Com.

• Decision Date: 05 October 1979
• Docket Number: No. 781622,781622
• Citation: 220 Va. 429,258 S.E.2d 574
• Parties: Frances Marie SCHAAF v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 574

258 S.E.2d 574

220 Va. 429

Frances Marie SCHAAF v. COMMONWEALTH of Virginia.

Record No. 781622.

Supreme Court of Virginia.

Oct. 5, 1979.

W. R. Gambill, Richmond (Gambill & Martin, Richmond, on brief), for appellant.

James E. Kulp, Deputy Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

This case involves Code § 18.2-308, which provides, in part, that "(i)f any person carry about his person, hid from common observation, any pistol, . . . he shall be guilty of a Class I misdemeanor, . . ."

On March 20, 1978, Mrs. Frances Marie Schaaf appeared at the Henrico County Juvenile and Domestic Relations Court to attend a hearing on a petition for an increase in the amount that her husband should pay for the support of their children. Near the entrance to the courtroom is the court's security scanner. This machine is designed to detect certain grades of metal, and those who have business before the court are required to walk through the device before entering the courtroom. As Mrs. Schaaf went through, a deputy sheriff assigned to operate the scanner asked to see her handbag. Mrs. Schaaf complied with the request, and when the officer opened the handbag and began a search, Mrs. Schaaf stated, "It's in the bottom." When asked what was in the bottom, Mrs. Schaaf replied, "I have a gun."

The defendant's gun was a .25 automatic Titan handgun with five rounds of ammunition in the clip and one bullet in the chamber. The handbag was described as "a brown, zippered handbag, the zipper being at the top." The officer testified that Mrs. Schaaf expressed surprise at her arrest and stated that she did not know that it was against the law to carry the gun in her handbag. She did not have a permit to carry a concealed weapon.

Defendant was charged with carrying a concealed weapon and was convicted in the General District Court of Henrico County and, upon appeal, in the circuit court of the county. Relying upon Sutherland's Case, 109 Va. 834, 65 S.E. 15 (1909), Mrs. Schaaf seeks a reversal of the order of the court below imposing upon her a fine of $35.

Virginia's concealed weapon statute has remained essentially unchanged for a period of seventy years. The relevant words of the statute are "if any person carry about his person, hid from common observation, any pistol . . . ." The defendant in Sutherland "placed a pistol, incased in its scabbard, in a pair of saddlebags, pulled the lids of the saddlebags down, hiding the pistol from view, and carried the saddlebags in his hand down the road . . . ." 109 Va. at 834-35, 65 S.E. at 15. The court, in reversing the defendant's conviction, said:

The purpose of the statute was to interdict the practice of carrying a deadly weapon about the person, concealed, and yet so accessible as to afford prompt and immediate use. "About the person" must mean that it is so connected with the person as to be readily accessible for use or surprise if desired. A pistol in a scabbard and in a pair of saddlebags with, the lids down, though the saddlebags be in the hand, does not fall within the language of the statute, . . .

109 Va. at 835-36, 65 S.E. at 15.

Although there are obvious differences between the accessibility of a gun in a lady's handbag and a gun encased in a scabbard ¹ and carried in a saddlebag ² with the lid down, our holding in Sutherland is strong precedent supporting the position of the defendant. However, Sutherland was decided seventy years ago, and it is doubtful that this court in 1909 envisioned the modern day handbag commonly used by most women and by some men.

Handbags are made in various sizes, colors and styles, and some are designed to carry a great number of articles deemed necessary or convenient by the carrier. The bags are often supported by shoulder straps and are easily opened and closed by devices such as zippers, buckles or stays. A pistol carried in such a bag is not only near and about the carrier's person, hidden from common observation, but in some handbags it is so accessible that it could be fired without being removed therefrom. "(I)t is so connected with the person as to be readily accessible for use or surprise if desired. . . ." Sutherland, Supra, 109 Va. at 835, 65 S.E. at 15.

A gun in a saddlebag, although not readily accessible, did provide a measure of protection to a horseman traveling primarily in rural areas. It did not pose a serious and immediate threat to others. A gun in a shoulder bag or a large handbag is accessible and could post a major problem and danger to the general public. Each day in this country thousands of homicides, assaults and robberies are perpetrated by the use of handguns. This knowledge prompted the General Assembly of Virginia to deny to all but a few officials permission to carry a concealed weapon, and to require all others who desire such permission to make written application and submit satisfactory proof of good character and necessity to the circuit court. The legislature also limited to one year the time such a permit could be granted by the court. Code § 18.2-308.

A reversal of defendant's conviction would in effect judicially sanction the carrying of a concealed weapon by all persons, male and female, who own a shoulder bag or a handbag. It would render useless the statute now requiring that permission be first obtained from the court by anyone who desires to carry a concealed weapon.

Respect for and adherence to the rule of Stare decisis does not require such a course of action on our part. While Sutherland can be distinguished from this case on the facts, to the extent that there may be a conflict Sutherland is overruled.

Our decision accords with the rule of a majority of jurisdictions that have addressed the issue. They hold that the carrying of a weapon in a handbag or other similar article, held in the hand or placed under the arm, constitutes concealment of a weapon on or about the person. See 79 Am.Jur.2d Weapons and Firearms § 11 (1975); Annot., 43 A.L.R.2d 492, 534 (1955); 94 C.J.S. Weapons § 8 (1956).

The judgment of the court below is

Affirmed.

COMPTON, J., dissents.

CARRICO, J., joins in second part of dissenting opinion.

COMPTON, Justice, dissenting.

Upon the threshold, it should be stated that I fully share the majority's policy concerns about the danger created by the unlawful use of handguns in today's society. Nevertheless, I disagree with the majority's decision in this case for two reasons.

First, I feel bound to apply the ancient maxim that a penal statute must be construed strictly against the State and favorably to the citizen. Speaking of that settled rule, this court said in Sutherland v. Commonwealth, 109 Va. 834, 835, 65 S.E. 15, 15 (1909):

The maxim is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the Legislature, and not in the judicial department. No man incurs a penalty unless the act which subjects him to it is clearly within the spirit and letter of the statute which imposes such penalty. There can be no constructive offenses, and before a man can be punished his case must be plainly and unmistakably within the statute. If...