State v. Nieto

• Decision Date: 06 December 1920
• Docket Number: 16624
• Citation: 130 N.E. 663,101 Ohio St. 409
• Parties: The State Of Ohio v. Nieto
• Court: Ohio Supreme Court

130 N.E. 663

101 Ohio St. 409

The State Of Ohio v. Nieto

No. 16624

Supreme Court of Ohio

December 6, 1920

Criminal law- Carrying concealed weapons - Section 962819, General Code - No exception as to home, when - Charge to jury - Carrying of weapon in bunkhouse.

On the trial of one accused of the crime of carrying concealed weapons, as defined by Section 12819, General Code, where the evidence is that the accused, at the time he was carrying the weapon concealed on his person, was in a bunkhouse, belonging to his employer, where he and other employes of the same employer lived and slept during their employment, a charge of the court that if this bunkhouse was the accused's place of living, where he slept, then it was his home, and he had a right, as a matter of law, to carry a weapon concealed on his person while in that bunkhouse, and must be acquitted of the charge in the indictment, is erroneous. The statute makes no such exceptions.

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EXCEPTIONS by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Stark county.

At the January term, 1920, of the court of common pleas of Stark county, Mike Nieto was indicted and tried for the crime of carrying concealed weapons, as defined by Section 12819 General Code, the indictment charging that he did on or about the 26th day of December, 1919, unlawfully and feloniously "carry concealed on and about his person a certain dangerous weapon, to-wit, a revolver." The verdict of the jury was "Not guilty."

There were but three witnesses testifying at the trial, two private police officers and the accused himself. The testimony of the police officers was to the effect that, having been called to the plant of the United Alloy Steel Company in the northeastern end of the town of Alliance, on the morning of the 26th day of December, 1919, they went there at about 6 or 6:30 o'clock, to a bunkhouse on that property, which was known as Bunkhouse No. 2, and was one of a camp of some six or seven bunkhouses between plants A and B of the United Alloy Steel Company; that they found the accused, Mike Nieto, a Mexican in the employ of the United Alloy Steel Company; reclining uncovered, but fully dressed on a bunk within the same; that he had his coat on and was lying in a half-reclining position on his right side, propped up on one arm, and was a little drunk; and that they searched through his clothes on his left-hand side and then turned him over to search on the other side, whereupon a pistol containing four loaded cartridges dropped out of his right-hand trousers pocket onto the bunk upon which he was lying.

It is apparent from the testimony why these police officers went there on that morning. It was because of a complaint they had received from the cook of the camp, denied, however, by the accused, that the accused while drunk on the night before had threatened to kill the cook with the pistol in question.

This bunkhouse was provided by the United Alloy Steel Company and was occupied by some twenty or thirty other men, who, with the accused, were employes of that company and worked at that plant.

The testimony of the accused was to the effect that the bunk upon which he was lying was his bunk, that is it had been assigned to him by his employer's foreman that he had been living there in that bunkhouse for a couple of months while working there in the employ of the United Alloy Steel Company; and that he did not have this pistol in his pocket, but had it under his pillow instead.

The court in its charge to the jury said, in part:

"Something has been said about the place at which this defendant was arrested. I say to you, gentlemen, that if at the time of his arrest on the 26th day of December, 1919, this defendant, Mike Nieto, lived at Bunkhouse No. 2 where he was arrested, if that was his place of living, where he slept, then that was his home, and being his home he had a right, I say to you, as a matter of law, to have a pistol, either loaded or empty, with him and in his possession, or concealed on his person. And if you find that that was his home, his place of sleeping and staying then I say to you it is your duty and you shall return a verdict finding this defendant not guilty."

To this charge the prosecuting attorney excepted, and, under the provisions of Sections 13681 to 13684, inclusive, General Code, brings the case here on his bill of exceptions, in order that this court may render a decision upon the point presented therein, to determine the law to govern in a similar case.

Mr. Walter S. Ruff, prosecuting attorney, for the exceptions.

Mr. Abram W. Agler, against the exceptions.

AVERY, J. There is no doubt in our minds that the court of common pleas erred in its charge to the jury in this case, in the respect excepted to by the prosecuting attorney.

Section 12819, General Code, since its amendment in 1917 (107 O. L 28), reads as follows:

"Whoever carries a pistol, bowie knife, dirk, or other dangerous weapon concealed on or about his person shall be fined not to exceed five hundred dollars, or imprisoned in the county jail or workhouse not.less than thirty days nor more than six months, or imprisoned in the penitentiary not less than one year nor more than three years. Provided, however, that this act (G. C. 12819) shall not affect the right of sheriffs, regularly appointed police officers of incorporated cities and villages, regularly elected constables, and special officers as provided by sections 2833,4373, 10070, 10108 and 12857 of the General Code to go armed when on duty. Provided further, that it shall be lawful for deputy sheriffs and specially appointed police officers, except as are appointed or called into service by. virtue of the authority of said sections 2833,4373, 10070,10108 and 12857 of the General Code to go armed if they first give bond to the state of Ohio, to be approved by the clerk of the court of common pleas, in the sum of one thousand dollars, conditioned to save the public harmless by reason of any unlawful use of such weapons carried by them; and any person injured by such improper use may have recourse on said bond."

This statute is plain and unambiguous in its terms. It contains no exception in favor of place. We are compelled to hold, therefore, that it makes punishable the carrying by an individual of one of the enumerated weapons, concealed about his person, even in his own home. Similar statutes in other states have been uniformly so construed and applied. Dunston v. State, 124 Ala. 89; Carroll v. State, 28 Ark. 99; Brown v. State, 114 Ga. 60; Commonwealth v. Walker, 7 Ky. L. R. (abstract), 218, and People v. Demorio, 123 A.D. 665, 108 N.Y.S. 24.

Neither is the statute unconstitutional, as in conflict with Section 4, Article I of the Constitution of Ohio, when so construed. The statute does not operate as a prohibition against carrying weapons, but as a regulation of the manner of carrying them. The gist of the offense is the concealment. The constitution contains no prohibition against the legislature making such police regulations as may be necessary for the welfare of the public at large as to the manner in which arms shall be borne. The intent of Section 4, Article I of the Constitution of Ohio, is revealed by the language of that section itself: "The people have the right to bear arms for their defense and security; but standing armies, in the time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power." And its meaning becomes more apparent when considered in the light of the limitation imposed by the people upon the powers of the federal government by the 2d Amendment to the Constitution of the United States: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." The extent of such constitutional rights has been judicially defined in a number of cases, reference to a few of which will suffice: Aymette v. State, 21 Tenn. 154; Fife v. State, 31 Ark. 455; English v. State, 35 Tex. 473; City of Salina v. Blaksley, 72 Hans., 230,3 L.R.A., N. S., 168,115 Am.St. 196. We are thoroughly in accord with these decisions.

Somewhat illuminating in this connection, as applied to the particular facts in this case, is the language of Spear, J., in State v. Hogan, 63 Ohio St. 202, at 218 and 219: "The constitutional right to bear arms is intended to guarantee to the people in support of just government such right and to afford the citizen means for defense of self and property. While this secures to him a right of which he cannot be deprived, it enjoins a duty in execution of which that right is to be exercised. If he employs those arms which he ought to wield for the safety and protection of his country, his person and his property, to the annoyance and terror and danger of its citizens, his acts find no vindication in the bill of rights. That guarantee was never intended as a warrant for vicious persons to carry weapons with which to terrorize others. Going armed with unusual and dangerous weapons to the terror of the people is an offense at common law. A man may carry a gun for any lawful purpose, for business or amusement, but he cannot go about with that or any other dangerous weapon to terrify and alarm a peaceful people."

Nor does the rule expressed in the maxim "Every man's house is his castle," prevent the statute from operating within an individual's home. That maxim relates to the rights of an individual to defend his house against violence, and his person against death or great bodily harm within his house, to which expression was given by this court in State v. Peacock, 40 Ohio St. 333: "Where one is assaulted in his home,...