Smith v. Commonwealth

• Decision Date: 26 May 1950
• Citation: 313 Ky. 113
• Parties: Smith v. Commonwealth
• Court: United States State Supreme Court — District of Kentucky

Page 113

313 Ky. 113

Smith v. Commonwealth

Court of Appeals of Kentucky.

May 26, 1950.

Fred Smith was convicted in the Circuit Court of Rockcastle County, R.C. Tartar, J., of carrying concealed a deadly weapon on or about his person, and he appealed. The Court of Appeals, Rees, J., held that commonwealth was not required to prove that defendant was not within statutory exception since burden of such proof was on defendant.

Affirmed.

Weapons. — In prosecution for carrying concealed a deadly weapon, commonwealth was not required to prove that defendant was not within statutory exception since burden of such proof was on defendant. KRS 435.230 (1, 2); Criminal Code of Practice, sec. 126, and subd. 2.

Fritz Krueger for appellant.

A.E. Funk, Attorney General, and W. Owen Keller, Assistant Attorney General, for appellee.

Before R.C. Tartar, Judge.

JUDGE REES.

Affirming.

The appellant, Fred Smith, was convicted of the offense of carrying concealed a deadly weapon on or about his person, and his punishment was fixed at confinement in the penitentiary for a period of two years. Appellant and three companions were arrested on another charge, and when searched a 45-calibre pistol was found on appellant's person. The two arresting officers testified that the pistol was concealed. The sole contention made on this appeal is that the trial court should have peremptorily instructed the jury to find the appellant not guilty on the ground that the Commonwealth failed to introduce any proof to show that he was not within the exception incorporated in the clause of the statute defining the crime.

Subsection (1) of section 435.230 of the Kentucky Revised Statutes provides: "Any person, not expressly authorized by law, who carries concealed a deadly weapon, other than an ordinary pocket knife, on or about his person * * * shall be confined in the penitentiary for not less than two nor more than five years." Subsection (2) names numerous officers and others who may carry concealed deadly weapons on or about their persons. Appellant relies upon a familiar rule of statutory construction to the effect that where an exception is incorporated in the clause of a criminal statute defining the crime, it is incumbent upon the prosecution to allege in its indictment and to prove that the accused is not within the exception, but where the exception is in a subsequent clause or separate statute it is a matter of defense. It seems to have been based on the theory that when the exception is embodied in the clause defining the crime, it becomes, because of that fact alone, a part of the description of the offense. The rule originated in England, and the English decisions served as precedents in the early decisions in this country. It has been the source of much judicial discussion as a reference to the annotation in 153 A.L.R. 1218 will disclose. In construing criminal statutes in which the clause defining the crime contains an exception, this court, prior to the 1942 amendment to section 126 of the Criminal Code of Practice,...