Case Law, Court Rulings, Interpretation

Case Law, Court Rulings, Interpretation

Brown v. City of Chicago
42 Ill.2d 501, 250 N.E.2d 129
Ill. 1969.
May 28, 1969

42 Ill.2d 501, 250 N.E.2d 129
Supreme Court of Illinois.
Joseph I. BROWN, Jr., et al., Appellants,
The CITY OF CHICAGO et al., Appellees.
No. 41550.
May 28, 1969.

L. Louis Karton, Chicago, for appellants.

Raymond F. Simon, Corp. Counsel, Chicago (Marvin E. Aspen and Robert J. Collins, Asst. Corp. Counsel, Edmund Hatfield, Chicago, Ill., of counsel), for appellees.

This case involves the constitutional validity of two Chicago ordinances regulating the possession of firearms and requiring their registration. Three individuals and a sporting goods store brought suit in the circuit court of Cook County to enjoin the City and its officials from enforcing them. On motion of defendants the complaint was stricken and the cause dismissed. Plaintiffs appeal.

The ordinances became effective April 15, 1968, and appear as Chapters 11.1 and 11.2 of the Municipal Code of Chicago, Chapter 11.1 pertains to the registration of firearms. It requires detailed records to be kept when a firearm is sold or given away, including full identification of the firearm as well as the person to whom it is sold or given. A *503 registration form must be completed and mailed to the office of the city collector within 48 hours. Persons who have acquired their firearms prior to the date of the ordinances are also required to register possession. The city collector is then to forward to the possessor or purchaser a registration certificate with full identifying information, which must be carried with the firearm and exhibited on request of any police officer. Certain classes of persons are declared ineligible to register, including minors under 18-years-of-age, narcotic addicts, felons, and mental defectives, and all such persons are forbidden to have firearms. Chapter 11.2, relating to the possession of guns, makes it unlawful for any person to carry a rifle, shotgun, or other firearm except in his home or place of business. The chapter is made inapplicable to peace officers and other authorized classes enumerated therein.

To sustain their charge of invalidity plaintiffs employ a ‘shotgun’ technique, alleging a dozen different grounds therefor in addition to claiming that the ordinances will not achieve their object of reducing crime. In substance the principal contentions are that the City lacks power to legislate with regard to gun control because the State has pre-empted the field, that the ordinances violate the provisions of the Federal constitution concerning the right of the people to keep and bear arms, that they **131 are vague, confusing and inconsistent with the statute on the subject, that they unlawfully delegate legislative power to the city collector and contravene the doctrine of separation of powers, and that they constitute an unreasonable exercise of police power.

[1] With regard to the first contention it is suggested that whatever power the City had to regulate firearms has been repealed by implication by an act effective July 1, 1968. (Ill.Rev.Stat.1967, ch. 38, par. 83-1 et seq.) The argument is without merit. The statute does not require the registration of weapons, as does the Chicago registration ordinance.*504 Rather it deals with registration of the individual owner of firearms. Its declared purpose merely is ‘to provide a system of identifying persons who are not qualified to acquire or possess firearms and firearm ammunition * * *.’ (Ill.Rev.Stat.1967, ch. 38, par. 83-1.) Unlike the registration certificate for which the ordinance provides, the identification cards required by the Act do not even refer to or identify particular weapons. There is no inconsistency or repugnancy between the two, and the legislature has not pre-empted the field of gun control. As this court said in Kizer v. City of Mattoon, 332 Ill. 545, 549, 164 N.E. 20, 22: ‘While municipal ordinances must be in harmony with the general laws of the state, and in case of a conflict the ordinance must give way, the mere fact that the state has legislated upon a subject does not necessarily deprive a city of power to deal with the subject by ordinance. Police regulations enacted by a city under a general grant of power may differ from those of the state upon the same subject, provided they are not inconsistent therewith.’ See, also Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N.E.2d 495.

[2] Also invoked is the second amendment to the United States constitution, which says that ‘(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.’ Contentions that this right precludes firearm regulation and control have been answered both in this State (Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182), and, more recently, elsewhere. (Burton v. Sills, 53 N.J. 86, 248 A.2d 521.) They need not be dealt with again here. As the opinion in the Burton case points out, regulation which does not impair the maintenance of the State’s active, organized militia is not in violation of either the terms or the purposes of the second amendment.

[3] [4] Plaintiffs argue that the definition of ‘firearms’ in the ordinances is broader than the one in the statute, and that even though a person obeys all the requirements of the latter *505 he will not necessarily be protected thereby from prosecution for violating the ordinances. This does not constitute a valid objection. As we have indicated, the statute and the ordinances have differing objectives. Nor is there merit in objections that the definition includes parts of a weapon, that the ordinances are vague and indefinite, that they duplicate other ordinances, that they are inconsistent with statutes on the subject, that during the 30-day period which the city collector is given to forward the registration certificate the owner may be penalized for not having one, and that in other enumerated respects the plaintiffs’ constitutional rights are violated. We find no merit at all in these multiple criticisms, and no useful purpose would be served by discussing them in detail.

[5] Included in the registration ordinance’s definition of firearms which must be registered is a ‘firearm silencer’. By statute it is made a crime to possess such a device (Ill.Rev.Stat.1967, ch. 38, par. 24-1(a)(6).) The circuit court held that the part of the ordinance relating to silencers is unconstitutional, on the ground that it violates the privilege against self-incrimination, but that the remainder of the ordinance is not thereby invalidated. Plaintiffs here urge the court erred in not declaring**132 that the entire ordinance was therefore void. We cannot accept the argument. The portion relating to firearm mufflers or silencers is clearly severable from the other provisions, and it can hardly be said that the latter would not have been passed if silencers had not been included.

[6] The fact that a part is unconstitutional does not require that the remainder be held void unless all the provisions are so connected as to depend upon each other. If what remains after the invalid portion is stricken is complete in itself and capable of being executed wholly independently of that which is rejected, the invalid portion does not render void the entire ordinance unless it can be said that the city council would not have passed it with the invalid portion eliminated. *506 (People ex rel. Engle v. Kerner, 32 Ill.2d 212, 205 N.E.2d 33; People ex rel. Adamowski v. Wilson, 20 Ill.2d 568, 170 N.E.2d 605; McDougall v. Lueder, 389 Ill. 141, 58 N.E.2d 899, 156 A.L.R. 1059.) That the remaining provisions in the case at bar are complete in themselves and would have been passed even with the silencer portion eliminated is too clear for further discussion.

[7] The registration ordinance requires a seller to maintain a register containing the date of sale, the name, address, age, physical description and occupation of the purchaser, the price of the firearm, its description and serial number, the purpose for which it is obtained, the permit number and ‘other relevant information deemed necessary by the City Collector.’ It is claimed that the quoted phrase is an unlawful delegation of legislative power to the city collector, and unlawfully confers upon a member of the executive department the discretion to determine what additional information the citizen shall produce.

[8] The position cannot be sustained. The discretion is not to be construed as being uncontrolled. It can be exercised only within limits which are relevant to the purpose of identification and is, we think, subject to adequate standards. Absolute criteria whereby every detail necessary in the enforcement of a law is anticipated need not be set forth in the ordinance itself. While a legislative body cannot delegate its general power to determine what the law shall be, it may delegate to others the authority to do those things which it might properly do itself but cannot do as understandingly or advantageously. (Hill v. Relyea, 34 Ill.2d 552, 216 N.E.2d 795.) The city collector in administering the ordinance is in a position to determine more advantageously when and what further descriptive information is needed. In doing so he is not exercising a legislative power as contemplated by the separation-of-powers article in the constitution.

[9] Each of the ordinances provides that any person violating its provisions shall be fined $500. The plaintiffs contend that this ‘mandatory’ penalty infringes on the function of *507 the judiciary to determine the punishment, in contravention of the separation-of-powers requirement contained in Article III of the Illinois constitutions, S.H.A. We cannot agree. The sum provided for is within the limits of the power conferred by statute (Ill.Rev.Stat.1967, ch. 24, par. 1-2-1), and the mere fact that the maximum penalty is imposed in any case does not make the ordinances void. City of Arcola v. Wilkinson, 233 Ill. 250, 84 N.E. 264.

[10] Plaintiffs argue at length that strict gun laws do not tend to reduce crime, and statistics and excerpts from reports of surveys are quoted to show that legal restrictions are easily circumvented by experienced criminals. The shameful fact is pointed out that it is unsafe to walk alone at night in many neighborhoods and parks, and it is suggested that firearms might often be necessary for self-protection. These arguments, whatever validity they might have, are not appropriately addressed to this court. They relate to matters of legislative instead of judicial concern, and **133 bear on the advisability of the present provisions rather than on their validity.

We have carefully considered the plaintiffs’ arguments and contentions, many of which consist in little more than bare statements that particular aspects contravene due process or some other constitutional provision, but find them without sufficient merit to warrant further discussion. The circuit court of Cook County was correct insofar as it upheld the ordinances and dismissed the complaint. The judgment will be affirmed.

Judgment affirmed.

Ill. 1969.
Brown v. City of Chicago,
42 Ill.2d 501, 250 N.E.2d 129

Pierce v. State
42 Okla.Crim. 272, 275 P. 393
Okla.Crim.App. 1929.
March 16, 1929

42 Okla.Crim. 272, 275 P. 393
Criminal Court of Appeals of Oklahoma.
No. A-6407.
March 16, 1929.

Syllabus by the Court.

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 *394 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.

[1] 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: “All assignments will be considered in one assignment. That under the Constitution (Bill of Rights) Sec. 26, of Article 2, the defendant committed no offense, and the evidence is insufficient to sustain a conviction.”

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: “Is a pistol the character of arms in contemplation of the constitutional convention and of the people of the state when they declared that the right of a citizen ‘to carry and bear arms,’ etc., ‘shall never be prohibited.’ We hold that it is not, and most of the states where it has been passed upon support us in this conclusion. Bishop on Statutory Crimes, § 793; Andrews v. State, 3 Heisk. (Tenn.) 165, 8 Am. Rep. 8; Fife v. State, 31 Ark. 455, 25 Am. Rep. 556; English v. State, 35 Tex. 473, 14 Am. Rep. 374; Aymette v. State, 2 Humph. (Tenn.) 154; Hill v. State, 53 Ga. 472; City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 3 L. R. A. (N. S.) 168, 115 Am. St. Rep. 196, 7 Ann. Cas. 925.”

In Mathews v. State (Okl. Cr. App.) 244 P. 56, the court said:

“The provisions of the statutes of Oklahoma (sections 1991, 1992, C. O. S. 1921), prohibiting the carrying of the weapons therein set out, are not violative of section 26 of article 2 (Bill of Rights) of the Constitution of Oklahoma.”

“The evidence is brief, and is, in substance, that the defendant is a practicing attorney of Payne county; that at the time the offense is charged the defendant appeared before a justice of the peace at Stillwater as attorney for *395 some persons in that court, and at the time had in his right-hand coat pocket a revolver, the barrel of which protruded through the pocket and was exposed. The defendant admitted that he carried the pistol as alleged, * * * and that he carried the pistol for his protection. The contention is advanced that, under section 26 of the Bill of Rights of the state Constitution, he had a right to carry the pistol for his protection. This section of the Constitution is 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 prosecution was conducted under section 1991, Comp. Stat. 1921, which is: ‘It shall be unlawful for any person in the state of Oklahoma to carry concealed on or about his person, saddle or saddle bags, any pistol, revolver, bowie-knife, dirk, dagger, slungshot, sword-cane, spear, metal knuckles or any other kind of knife or instrument manufactured or sold for the purpose of defense, except as in this article provided.’ The Supreme Court had occasion to construe this statute in the case of Ex parte Thomas, 1 Okl. Cr. 210, 97 P. 260, 20 L. R. A. (N. S.) 1007, in which case it was held that the right to bear arms, as provided by section 26 of the Constitution, supra, has reference to arms of a military character, such arms as are used for purposes of war, and does not prevent the Legislature from prohibiting the carrying of weapons such as may be concealed about the person and used in private quarrels, and which do not contribute to the common defense; that the Legislature, in the exercise of the police power of the state, without any infringement of the constitutional rights of the citizens, may prohibit and punish the promiscuous carrying of arms. That case was approved and followed by this court in the case of Beard v. State, 7 Okl. Cr. 154, 122 P. 941. We adhere to the principles of law announced in those cases.”

In 40 Cyc. pp. 856 to 864, inclusive, in discussing “Place and Manner of Carrying,” we have this language: “Under statutes making it an element of the offense of carrying a weapon that it be carried on or about the person, it is so carried when it is in the hand or clothing of accused, or in a basket carried in his hand, or upon or under the seat of the vehicle in which he is riding, but not when it is in some other part of the vehicle. It is immaterial what locality a person is in when carrying a weapon, except where the statute expressly allows one to carry a weapon on his own premises or about his place of business, or except where it is a distinct statutory offense to carry a weapon to certain public places, assemblies, or gatherings. Neither is it material that the time and distance the weapon is carried is short, where it is wholly within the possession of accused during that time.”

Section 40 of article 5 of the Constitution of Oklahoma provides: “The Legislature shall provide for organizing, disciplining, arming, maintaining, and equipping the Militia of the State.”

[2] Herein is shown clearly that the Constitution contemplates the maintenance of a militia, and, taking this in connection with the other provisions and the views expressed by the courts from whose decisions we have quoted and the history of and ends to be attained by the arms-bearing provisions, we believe there is no room for doubt that the arms defendant had a right to bear, and which right could never be prohibited him, relates solely to such arms as are recognized in civilized warfare and not those used by the ruffian, brawler, or the assassin.

[3] Under article 2, § 26 (Bill of Rights), of the Constitution of Oklahoma, the Legislature has power to not only prohibit the carrying of concealed or unconcealed weapons described in sections 1991, 1992, C. O. S. 1921, but also has the power to even prohibit the ownership or possession of such arms. Some of the states under similar constitutional provisions have prohibited the ownership, but the Legislature of Oklahoma has not seen fit to go that far. As the law now is in this state, a person may lawfully own and possess any of the weapons named in sections 1991, 1992, and may move such weapons from room to room in their place of residence, but may not wear them on their person and transport them about the yard as shown by the evidence to have been done by the defendant in this case.

[4] In the trial of the case, the defendant testified substantially as follows: “That he was a single man living alone, and a friend of his told him that three fellows, which were named, intended to rob or hi-jack him, and that he purchased this pistol about six weeks before the officers came down to search, and had the pistol on his person, but had never carried it off his premises, that this was his only home, had lived at this place over a year, and owned other lands, but rented the lands out, that this place was a rented place, with only a house and small yard. That Jess Miles told him, that Boyd wanted Miles to help hijack defendant, and defendant says he always had about $100.00 about his house. Defendant says he never threatened any one, told the officers to come in and search but they found nothing in the way of whiskey or liquor.”

In the case of Shepherd v. State (Okl. Cr. App.) 192 P. 235, this court held: “In a prosecution for carrying a concealed weapon, an offered defense that the revolver which defendant was carrying concealed on his person was a 44-caliber gun commonly known *396 as an ‘army gun,’ and was carried to resist a threatened attack on his life, was not a sufficient defense.”

There being no question of fact in this case, but merely one of law, we hold that the defendant was properly convicted of unlawfully carrying a revolver.

The judgment is therefore affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J. (dissenting).
I cannot concur in the views of the majority opinion, wherein it holds that the defendant could carry the pistol he was carrying from room to room in his home but could not carry it into his yard, the curtilage of his home. Section 26, art. 2, of the Constitution of Oklahoma, is 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.”

Section 1992, C. O. S. 1921, being the section under which this defendant is prosecuted, is 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.”

Under the Constitution, supra, the Legislature has regulated the carrying of weapons. There is no law which prohibits the defendant from owning and possessing the pistol he was carrying, for which he was arrested and convicted. It is urged by the defendant that, under section 26, art. 2 (Bill of Rights), he committed no offense, and that the evidence introduced by the state against him is insufficient to sustain a conviction. With this contention I agree. Several opinions of the court are cited in the majority opinion, none of which are applicable to the facts in this case, for the reason the party charged in the cases cited was away from his home and in a public place. There is no dispute as to the facts. All the evidence shows that the witnesses against the defendant went to defendant’s home possessed with a search warrant to search the same; that, when they arrived at his home and advised the defendant that they had a search warrant to search his home, the defendant raised no objections; at the time of their arrival, the defendant had the pistol he is charged with unlawfully carrying stuck under his belt on the right side, in the top of his pants; that the officers found nothing called for in the search warrant. The testimony shows that, while they were searching, the pistol still being in defendant’s belt where it was when they first arrived, the defendant walked into the yard, the curtilage of his home, and back into the house.

The search was completed by the officers without finding anything called for in the search warrant. They then took the pistol from the defendant and arrested him for unlawfully, willfully, and wrongfully carrying about his person a Colt’s automatic revolver The defendant insists that the testimony in this case is insufficient to sustain a conviction, for the reason that he was not carrying the pistol in violation of our statute; that, being at home and in his yard, the curtilage of his home, he had a right to own and possess the pistol he was carrying, and to carry it in his house and upon his yard, the curtilage of his home; and that in so doing he was not violating the law prohibiting the carrying of weapons. This seems to be the first time in the history of the criminal courts that any one has ever been arrested for carrying a weapon in his own home or within his yard, the curtilage of his home under a statute regulating the wearing or carrying of a pistol. Many cases are found where the defendant has been arrested for carrying weapons in violation of the statutes of his state, yet I fail to find any where a man has been arrested and convicted for carrying a weapon that he had a right to own and possess in his house or in his yard, the curtilage of his home, nor does the majority opinion cite any case from any court in this or any other state where the defendant has ever been convicted for carrying a pistol in his home or his yard.

After a careful search of authorities, trying to find one case to sustain the majority opinion, I have failed. I find a case not exactly in point, but by analogy may be construed in defendant’s favor. In Tucker v. State, 105 S. W. 499, the Court of Criminal Appeals of Texas, in passing upon the question, made the following statement:

“It is contended that the evidence is not sufficient. There seems to be no practical contradiction in the evidence that appellant was arrested at home and carried by the officers to the county seat, and while en route was searched for weapons and none found. Upon reaching the jail, he was again searched and a knife found upon him, which the witnesses testified was not a dirk, and did not know whether it was a bowie knife or not, that it did not correspond with the definition of a bowie knife, and they did not know what sort of a knife it was.”

The court further said:

“It is the state’s case that he was arrested at his home, and carried under arrest to the county seat and placed in jail. When arrested at home, he had on the knife, and had no opportunity to get it at any other time or place, and being under arrest his actions were not voluntary, but in obedience to the wish and will of the officers.”

*397 “If he had carried the knife himself unfettered by the arrest off his premises, he might be guilty, but we do not believe the law intended, nor is it the law, that a party having on his person a pistol, or an interdicted weapon at his home, and being forced away with it on him, that it would be such a carrying of an inhibited weapon as would make him subject to punishment.”

From an examination of the record, the defendant was at his home where he had a right to be, exercising peaceably his rights, and, in the exercise of those rights, he was not interfering with any other individual. I cannot believe that the defendant, by carrying the pistol in his house and into his yard, the curtilage of his home violated the statute of this state. I do not believe that the intention of the Legislature, when it enacted the law regulating the carrying of weapons, intended to abridge the sacred right of a citizen of the state by prohibiting him from doing a certain thing within the walls of his home, and to say that he could not do the same in his yard, the curtilage of that home. From time immemorial, the home, be it ever so humble, has been sacred-the castle of the occupant-with the right to repell invasion or any trespass thereon. For centuries the right to occupy that home has gone unchallenged. The curtilage to the home is a part of that home, and no court, so far as I have been able to find, has ever attempted to abridge the rights of the occupant of the home and to the exercise and use of the curtilage the same as the home. Without the unrestricted use of the curtilage, the home would be useless. To say that an individual may own and possess, and have the right to carry from one room to another in the house, a pistol, but that he cannot carry it into the yard, the curtilage, in my judgment strikes at the very foundation of the privacy of the home; its sacred protection that has been thrown around it since the organization of a home would be destroyed. The regulations of the carrying of weapons, in my judgment, was not intended to restrict the rights of an individual in his home and the curtilage thereto.

I think that the defendant was wrongfully convicted; that he violated no law when he was in his home or curtilage thereto in carrying the pistol he carried, and that his objections to the evidence were well taken and should have been sustained, and that the evidence is insufficient to sustain a conviction, and should be reversed, with directions to discharge the defendant.

Okla.Crim.App. 1929.
42 Okla.Crim. 272, 275 P. 393, 73 A.L.R. 833

Carlton v. State
63 Fla. 1, 58 So. 486
Fla. 1912
March 26, 1912

63 Fla. 1, 58 So. 486

Supreme Court of Florida.
CARLTON et al.
March 26, 1912.
Rehearing Denied May 15, 1912.

Syllabus by the Court

Threats made against the deceased by two of the three persons indicted for his murder on the night before the homicide, not made in the presence of the third party, are admissible in evidence against the two who made them, as tending to show their animus against the deceased; and the third person indicted is not injured by such evidence, when the court instructs the jury that such threats are not evidence against such third party.
No error is committed in refusing to permit a party charged with an unlawful homicide to prove that he voluntarily surrendered to the officer, when the state had not undertaken to show that he evaded arrest.
The question whether the title to an act was broad enough to cover some of its sections is of no moment, when the sections of said act were subsequently embodied in the General Statutes of 1906.
Sectipn 3262, General Statutes of 1906, is not unconstitutional, because it excepts sheriffs and other police officers from its operation, as said exception or classification is based on a public necessity, and is not in conflict with any specific provision of the Constitution.
The statutes against carrying concealed weapons have no connection with section 20 of the Bill of Rights, which preserves ‘to the people the right to bear arms in defense of themselves and the lawful authority of the state.’
Since the adoption of sections 3262 and 3263 of the General Statutes of 1906, the carrying of concealed weapons is a breach of the peace which authorizes an arrest by an officer, without warrant; and section 3929 is broader, and gives an officer authority to arrest, without warrant, any one who, in the presence of such officer, violates any of the penal laws of this state, or of any municipality, and makes it the duty of such officer to arrest, without warrant, and take into custody any person whom such officer has reasonable ground to believe, and does believe, has committed any felony, or whom he finds in the act of committing any felony, or about to commit a felony, or engage in a fight or other breach of the peace.
Where a person fires a pistol in a village, behind a cold drink stand within 100 yards of an officer’s residence, it may fairly be said that the pistol was fired in the ‘presence’ of the officer, and is an offense, under section 3626, Gen. St. 1906, for which an officer may arrest the person firing the pistol, without warrant.
Requested instructions, not warranted by the evidence, are properly refused.

*2 **486 John E. & Julian Hartidge, of Jacksonville, and A. R. Logan, of St. Augustine, for plaintiffs in error.

Park Trammell, Atty. Gen., and C. O. Andrews, both of Tallahassee, for the State.

Bascom Carlton, Dan Carlton, and Marion Carlton were indicted on the 25th of April, 1911, in the *3 circuit court of St. Johns county, for the murder of one Guy White on the 5th day of March of the same year. On the trial, Bascom Carlton was convicted of murder in the first degree, with recommendation to mercy, and Marion and Dan Carlton were convicted of murder in the second degree, and each of them sentenced to the state prison for life. The judgments are here for review on writ of error. Before discussing the assignments of error, the writer will endeavor to give a synopsis of the evidence.

On Saturday, the 4th of March, 1911, Bascom and Dan Carlton went from the neighborhood of Espanola to Hastings, in St. Johns county. They went on the East Coast Railroad. Their brother, Marion, went with them as far as Dinner Island, and there Marion left the train. At Hastings, Dan and Bascom figured around the barrooms considerably, bought and drank whisky, and one of them, probably Bascom, got into some trouble in a place where there was dancing by stepping on some one’s toe. Some disturbance occurred, which led to the arrest of Bascom and Dan. They gave bond, were released, and spent the night at a private house. They say that they were arrested just about midnight, when they were ready to take a train back to Espanola. They got on the train Sunday morning to go back to Espanola. At Dinner Island, they were joined **487 by Marion Carlton. A youth named Burney, who worked with Bascom near Espanola, also went to Hastings, and was on the train on Sunday morning. He was drunk, and had a pistol which Bascom says was his; he having left it in his room, where Burney got it. It was evident all these parties were drinking. The pistol which Burney had was taken from him by one of the parties and given to Marion or Dan, but finally *4 found its way to Marion. The defendants say that when Marion got off the train on Saturday at Dinner Island Bascom gave him his pistol, which Marion returned to him on Sunday, when he got on the train. It was proven that Bascom and Dan, on Saturday night at Hastings, made threats of killing Guy White and another man, Kelley, who had arrested them at Hastings. The defendants got off the train Sunday at Espanola about 12:30 o’clock. The evidence tends to prove that they hung around the depot for some time in the negro waiting room. There is some evidence that the agent requested Guy White, who was a deputy sheriff, to get them away from the depot. Marion and Dan went first from the depot to a vacant cool drink stand, about 100 yards from the depot. They say they went there to have a settlement of money matters, as Marion was to leave the next day. Some time after Marion and Dan went to the cool drink stand, Bascom joined them. The evidence tends to prove that while they were at this place Marion and Bascom indulged in threats about Guy White and another person; that they seemed to anticipate trouble with Guy White, the deputy sheriff, and expected to kill him. Then a pistol shot was fired by Marion, and Guy White, the deputy sheriff, hastended to the spot, calling upon one Snyder, who seems also to have been a deputy sheriff, and one Durrance to go with him. When Guy White reached the parties, he demanded who shot off the pistol. Marion answered that he did it, and he says he told White the pistol was accidentally fired. White demanded the pistol, and in trying to get it a short struggle ensued; but he finally got it, and them notified the three brothers they were all under arrest. It appears that Marion was boisterous and used threatening language, but that Dan counseled moderation and urged that there be no trouble. *5 Dan told White he had no pistol. No effort was there made to secure Bascom’s pistol. There was evidence from which the jury might have inferred that the pistol was fired off to attract the attention of White and bring him to the place, with the view of precipitating a difficulty with him, and of carrying out the threats that had been made.

After the brothers were put under arrest by White with the aid of a posse which he had called together, he undertook to take them to a jail or calaboose, which was some 50 years away. Espanola was a small settlement; the houses being some distance apart. On the way to the jail, Marion was obstreperous, and threatened to kill the whole of the arresters when he was turned loose. Handcuffs were put on him by Snyder, which White took off as soon as he reached the jail. The jail was a samll wooden building, with a passageway down one side, and three cells on the other, with doors opening on the passageway. The deputy sheriff, White, Snyder, and some of the posse escorted the arrested parties into the passageway; Bascom being the last of the brothers to enter. They arranged themselves along the passageway in front of the cell doors. Snyder had his pistol drawn. The evidence on the part of the state tends to prove that when the parties were all in the passageway, as above indicated, one of the posse, named Dorman, being next to Bascom, that White then said to Bascom he would have to search him to see if he had a gun or knife; that White then attempted to put his hand in Bascom’s pocket; and that as he did so Bascom drew his pistol and fired rapidly twice, killing both White and Snyder. Dorman seized the pistol in the hands of Bascom, and a struggle took place. The state’s witnesses say that both Dan and Marion seized Dorman, one choking him and the other holding his arm; but others present*6 came to Dorman’s help, with the result that he held onto the pistol. There was then a separation of the parties; the defendants leaving the scene, as well as the members of the posse.

The state’s witness Durrance says that when he went up to the cold drink stand to aid White, Marion was very ugly to him, saying to him and Snyder, who was with him: ‘You two sons of bitches, I am talking to Guy; if you got any word against me, say it, you bastards.’ He also says that when Marion got about halfway to the jail he said to the men who were guarding him: ‘You three sons of bitches, I will kill you if I ever got out of this. I know you.’ Durrance says he also heard Dan or Marion, he could not tell which, say, just as the shots were fired, ‘Kill all inside and outside.’ He also says he heard no cursing of Guy White, though Bascom and Marion protested against being arrested by him. Mr. Sabate, a deputy sheriff, who arrested Dan and Marion after the shooting on the night of March 5th, testified that they said to him ‘that when Bascom killed Mr. White, shot Mr. White, just previous to the shooting, when they were put in jail, that they knew he was going to shoot, and they stepped inside into one of the cells, and he did the shooting;’ and, again, that they said ‘they stepped into the cell one side to keep out of the way as it was of the shooting.’ Mr. Dean testified for the state that on the night of the killing he saw Dan at the witness’ camp, about a mile from Espanola. Dan came to his gate and called **488 him. The witness told him to come in and sit down, which he did. A fellow named Burney was with him. Dan said, ‘Well, I guess you heard what happened.’ Witness said: ‘I heard. I hope it is not so.’ Dan said, ‘Well, the Jew, Snyder, is killed.’ That Bascom killed him. He also said: ‘One thing I am sorry of, there was another damned long cracker in there. I am sorry they didn’t kill *7 him.’ Dan also said ‘he knowed the thing was going to happen, and stepped back one side out of the way.’ He said Bascom told him that if he ever got that much drop on Guy White he would kill him. He also said Dan was cutting ties for the witness.

The Carltons deny making the threats which the state alleged were made before the killing, and they deny saying the accusing things which the state’s witnesses say were made after the killing by Marion and Dan. They all say that when Bascom shot, White or some one had cried out, ‘Shoot the sons of bitches,’ or words of like import; and Bascom claims that he shot because he thought he was about to be shot himself. These statements are in conflict with the testimony of the state’s witnesses. The foregoing is a synopsis of the evidence.

It is difficult to discover from the brief of plaintiffs in error what particular assignments of error are most relied on. The first part of the brief seems to be devoted to a general discussion of assignments ‘under the tenth to the twentieth, inclusive.’ These assignments deal with charges given and instructions refused. Next assignments, fifth, sixth, seventh, and eighth, are grouped and discussed together in the brief, as is also done in the case of the nineteenth and twentieth assignments; and, lastly, the twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-seventh, twenty-eighth, and twenty-ninth are grouped, and the court is asked to apply the arguments made under the other assignments to these. Under these circumstances, we shall first discuss those assignments that are specifically argued.

[1] Several assignments question the propriety of permitting in evidence threats, alleged to have been made at Hastings on the night of March 4th by Bascom and Dan Carlton. We think this evidence was proper as to these *8 two as showing the animus of the parties. The court instructed the jury that declarations and admissions of the declarations were not evidence against such as were not present.

[2] Under the ninth assignment, it is contended that the court erred in not permitting Bascom Carlton to prove that he surrendered voluntarily to the officers. The state had not undertaken to show that he had fled, and no authority is shown to support this contention, and we know of none.

Assignment 10 questions a charge of the court, based on section 3263, General Statutes of 1906, making it a breach of the peace to carry concealed weapons, and authorizing an officer to arrest for said offense without a warrant.

[3] It is first contended that the original act of 1901, of which this section is a part, is unconstitutional, because its title was not broad enough. This is now of no moment, as the act is brought forward and re-enacted in several sections of the General Statutes of 1906.

[4][5] It is next contended that section 3262 is unconstitutional, because it excepts sheriffs and other police officers from its operation, and permits them to carry concealed weapons, which is denied to others. We are not referred to any special provision of our state Constitution which this statute is supposed to violate, and none occurs to us at this time. Apparently the exception or classification is based upon a public necessity growing out of the difficulties and hazards which sheriffs and other officers encounter in dealing with dangerous characters. These statutes against carrying concealed weapons have no connection with section 20 of the Bill of Rights, which preserves to the people the right ‘to bear arms in defense *9 of themselves and the lawful authority of the state.’ This section was intended to give the people the means of protecting themselves against oppression and public outrage, and was not designed as a shield for the individual man, who is prone to load his stomach with liquor and his pockets with revolvers or dynamite, and make of himself a dangerous nuisance to society. See the case of State v. Workman, 35 W. Va. 367, 14 S. E. 9, as reported in 14 L. R. A. 600, and important note; Presser v. State of Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615.

The eleventh assignment of error attacks a portion of the charge of the court defining a conspiracy. The contention is there was no evidence of a common design to murder Guy White. We think there were facts before the jury which save the charge from the general attack upon it, which was made. Their sufficiency was left by the court to the jury.

[6][7] The twelfth assignment is based on the refusal of the circuit judge to give an instruction to the effect that an officer was not justified in making an arrest without a warrant, when the person whom he arrests is not at the time in the presence of the arresting officer, committing a breach of the peace or criminal offense, or engaged in open violence by fighting or engaging in a fight, or about to escape after committing a felony.

It is alleged in the brief that this instruction is based on the case of Roberson v. State, 43 Fla. 156, 29 South. 535, 52 L. R. A. 751. Since this decision was made, the statute law has been changed by sections 3262 and 3263, General Statutes of 1906. The latter makes the carrying of a concealed **489 weapon a breach of the peace, and authorizes any officer to arrest for the offense without warrant. Section 3929 is broader, and gives an officer authority to *10 arrest, without warrant, any one who, in the presence of such officer, violates any of the penal laws of the state, or of any municipality, and makes it the duty of such officer to arrest, without warrant, and take into dustody any person whom such officer has reasonable ground to believe, and does believe, has committed any felony, or whom he finds in the act of committing any felony, or about to commit any felony, or engage in a fight or other breach of the peace. This section became law since the decision in Roberson v. State, supra.

Section 3626 is as follows: ‘Whoever discharges on any public highway or in any unincorporated village within three hundred years of any premises, any fire arms, without permission from the occupant of said premises, or in defense of life, limb or property, shall be punished,’ etc.

It may be fairly said that Marion Carlton fired his pistol in the presence of Guy White, the deputy sheriff. The firing was done within 100 yards of White’s residence, in the village of Espanola; and the only thing that prevented White from actually seeing the act of shooting was that Marion was behind the little shed, called a cold drink stand. Evidently White heard the shot and immediately repaired to the spot where it occurred.

At common law, sheriffs and other police officers, virtute officii, and all who aid them, are empowered by law to arrest, not only felons and those suspected of felony, but also persons guilty of a breach of the peace, or just suspicion thereof, such as nightwalkers and persons unduly armed. 2 Hale’s P. C. 85, 86. Hale gives weighty reason why peace officers should have these powers.

In Ramsey v. State, 92 Ga. 53, 17 S. E. 613, it is held that an officer may arrest, without warrant, for wife-beating, if he arrives at the scene during the progress*11 of or immediately after the beating; he being attracted thereto by the noise of the disturbance or the outcry of the woman. This was based on a section of the Georgia Code, authorizing an officer to arrest without warrant, if the offense is committed in his presence.

In the case of State v. McAfee, 107 N. C. 812, 12 S. E. 435, 10 L. R. A. 607, it is held that, ‘where the defendant struck his wife a blow with a stick in a public road, so near to the officer [a justice of the peace] that he could hear the sound made by the blow and the cries of the woman, though, on account of the darkness, he could not actually see the assault, it was such a breach of the peace in the presence of the officer as authorized him to arrest the assailant without a warrant.’ To the like effect are the decisions in the cases of Dilger v. Commonwealth, 88 Ky. 550, 11 S. W. 651; Hawkins v. Lutton, 95 Wis. 492, 70 N. W. 483, 60 Am. St. rep. 131, and note, discussing what constitutes a breach of the peace.

Under the facts of the instant case, we think it clear that Guy White was authorized to arrest the defendants Bascom and Marion Carlton and Dan also, if the facts were such as authorized him to believe there was a conspiracy to produce a breach of the peace in which they were all engaged.

[8] The thirteenth assignment of error is based on the refusal of the court to give an instruction to the effect that an officer, in making an arrest, is not authorized to use more force than is necessary. We do not think the evidence warranted this instruction. There is no evidence that Guy White used more force in arresting the defendants than was necessary. What we have already said disposes of a number of the assignments of error.

*12 The fifteenth assignment is based on the refusal of the court to instruct the jury that, under the law of Florida, a homicide is justifiable, when committed in the lawful defense of a brother. The difficulty with this instruction is that it assumes that Bascom Carlton shot White while White and Snyder were attempting to arrest Dan and Marion Carlton, and they were resisting an unlawful arrest. The evidence does not warrant such a hypothesis. The assignments based on the hypothesis that Guy White committed an unlawful arrest of the defendants, we do not think it necessary to consider. The facts seem to us to show a lawful arrest.

Several of the assignments of error question the correctness of the verdict as to each and all of the defendants. All of the Justices are of opinion that the evidence is sufficient to sustain the verdict as to Bascom Carlton. Chief Justice WHITFIELD, Justice SHACKLEFORD, and Justice COCKRELL are of opinion that there is sufficient evidence that Dan and Marion Carlton were present aiding and abetting in the murder of Guy White. On the sufficiency of the evidence to sustain the conviction as to Dan and Marion Carlton, Justice TAYLOR dissents, and the writer dissents as to Dan Carlton.

The judgment below is affirmed as to all the defendants.

Fla. 1912
63 Fla. 1, 58 So. 486

City of Salina v. Blaksley
72 Kan. 230, 83 P. 619
Kan. 1905.
November 11, 1905

72 Kan. 230, 83 P. 619, 3 L.R.A.N.S. 168, 115 Am.St.Rep. 196

Supreme Court of Kansas.
Nov. 11, 1905.

Syllabus by the Court.

Section 4 of the Bill of Rights, which provides that “the people have the right to bear arms for their defense and security,” is a limitation on legislative power to enact laws prohibiting the bearing of arms in the militia, or any other military organization provided for by law, but is not a limitation on legislative power to enact laws prohibiting and punishing the promiscuous carrying of arms or other deadly weapons.
[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Weapons, § 3.]

Appeal from District Court, Salina County; R. R. Rees, Judge.
James Blaksley was convicted of carrying a pistol within the city of Salina, and appeals. Affirmed.

David Ritchie, for appellant.

R. A. Lovitt, for appellee.

James Blaksley was convicted in the police court of the city of Salina, a city of the second class, of carrying a revolving pistol within the city while under the influence of intoxicating liquor. He appealed to the district court, where he was again convicted, and this proceeding is prosecuted to reverse the judgment of the latter court.

The question presented is the constitutionality of section 1003 of the General Statutes of 1901, which reads: “The council may prohibit and punish the carrying of fire arms or other deadly weapons, concealed or otherwise, and may arrest and imprison, fine or set at work all vagrants and persons found in said city without visible means of support, or some legitimate business.”

Section 4 of the Bill of Rights is as follows: “The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.” The contention is that this section of the Bill of Rights is a constitutional inhibition upon the power of the Legislature to prohibit the individual from having and carrying arms, and that section 1003 of the General Statutes of 1901 is an attempt to deprive him of the right guarantied by the Bill of Rights, and is therefore unconstitutional and void. The power of the Legislature to prohibit or regulate the carrying of deadly weapons has been the subject of much dispute in the courts. The views expressed in the decisions are not uniform, and the reasonings of the different courts vary. It has, however, been generally held that the Legislatures can regulate the mode of carrying deadly weapons, provided they are not such as are ordinarily used in civilized warfare. To this view, there is a notable exception in the early case of Bliss v. Commonwealth, 2 Litt. (Ky.) 90, 13 Am. Dec. 251, where it was held, under a constitutional provision similar to ours, that the act of the Legislature prohibiting the carrying of concealed deadly weapons was void, and that the right of the citizen to own and carry arms was protected by the Constitution, and could not be taken away or regulated. While this decision has frequently been referred to by the courts of other states, it has never been followed. The same principle was announced in Idaho in re Brickey, 8 Idaho, 597, 70 Pac. 609, 101 Am. St. Rep. 215, but no reference is made to Bliss v. Commonwealth, nor to any other authority in support of the decision. In view of the disagreements in the reasonings of the different courts by which they reached conflicting conclusions, we prefer to treat the question as an original one.

The provision in section 4 of the Bill of Rights “that the people have the right to bear arms for their defense and security” refers to the people as a collective body. It was the safety and security of society that was being considered when this provision was put into our Constitution. It is followed immediately by the declaration that standing armies in time of peace are dangerous to liberty and should not be tolerated. and that “the military shall be in strict subordination to the civil power.” It deals exclusively with the military. Individual rights are not considered in this section. The manner in which the people shall exercise this right of bearing arms for the defense and security of the people is found in article 8 of the Constitution, which authorizes the organizing, equipping, and disciplining of the militia, which shall be composed of “able-bodied male citizens between the ages of twenty-one and forty-five years. ***” The militia is essentially the people’s army, and their defense and security in time of peace. There are no other provisions made for the military protection and security of the people in time of peace. In the absence of constitutional or legislative authority, no person has the right to assume such duty. In some of the states where it has been held, under similar provisions, that the citizen has the right preserved by the Constitution to carry such arms as are ordinarily used in civilized warfare, it is placed on the ground that it was intended that the people would thereby become accustomed to handling and using such arms, so that in case of an emergency they would be more or less prepared for the duties of a soldier. The weakness of this argument lies in the fact that in nearly every state in the Union there are provisions for organizing and drilling state militia in sufficient numbers to meet any such emergency.

That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: “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.” Here, also, the right of the people to keep and bear arms for their security is preserved, and the manner of bearing them for such purpose is clearly indicated to be as a member of a well-regulated militia, or some other military organization provided for by law. Mr. Bishop, in his work on Statutory Crimes, in treating of this provision, which is found in almost every state Constitution, says, in section 793: “In reason, the keeping and bearing of arms has reference only to war and possibly also to insurrections wherein the forms of war are, as far as practicable observed.” *621 Commonwealth v. Murphy (Mass.) 44 N. E. 138, 32 L. R. A. 606, strongly supports the position we have taken. The defendant was convicted of being a member of an independent organization which was drilling and parading with guns. The guns, however, had been intentionally made so defective as to be incapable of being discharged. The prosecution was had under a statute which provided that: “No body of men whatsoever, other than the regularly organized corps of the militia [and certain other designated organizations], shall associate themselves together at any time as a company or organization, for drill or parade with fire-arms, or maintain an armory in any city or town of the commonwealth. ***”

On the trial the defendant invoked the provisions of the Massachusetts Bill of Rights, “the people have a right to keep and bear arms for the common defense,” in support of his contention that he had the right to bear arms. The court said: “This view cannot be supported. The right to keep and bear arms for the common defense does not include the right to associate together as a military organization, or to drill and parade with arms in cities or towns, unless authorized to do so by law. This is a matter affecting the public security, quiet, and good order, and it is within the police power of the Legislature to regulate the bearing of arms, so as to forbid such unauthorized drills and parades.” The defendant was not a member of an organized militia, nor of any other military organization provided for by law, and was therefore not within the provision of the Bill of Rights, and was not protected by its terms.

The judgment is affirmed. All the Justices concurring.

Kan. 1905.
72 Kan. 230, 83 P. 619, 3 L.R.A.N.S. 168, 115 Am.St.Rep. 196

People v. Brown
253 Mich. 537, 235 N.W. 245
Mi. 1931
February 27, 1931

253 Mich. 537, 235 N.W. 245, 82 A.L.R. 341

Supreme Court of Michigan.
No. 144.
Feb. 27, 1931

Error to Circuit Court, Jackson County; John Simpson, Judge.
Bernard Brown was convicted of carrying a dangerous weapon and of possessing and having in possession a blackjack, and sentenced as a fourth offender as on a plea of guilty, and he brings error.
Conviction by jury affirmed, and supplemental procedure and sentence reversed, and cause remanded.
Argued before the Entire Bench.

Frank L. Blackman, of Jackson, for appellant.

H. D. Boardman, Pros. Atty., and Owen Dudley, Asst. Pros. Atty., both of Jackson, for the People.

Defendant was convicted on both counts of an information charging him (a) with carrying a dangerous weapon, a blackjack, in an automobile, Comp. Laws 1929, § 16753, and (b) with possessing and having in possession a blackjack contrary to the provisions of section 3, Act No. 206, Pub. Acts 1929, Comp. Laws 1929, § 16751. He and another man had the blackjack and a rifle in an automobile. Supplemental information was filed, and, as on plea of guilty, he was convicted of being a fourth offender and sentenced to life imprisonment.

**246 Defendant contends that the statutes under which he was convicted are invalid as contravening section 5, art. 2, of the State Constitution, which reads: ‘Sec. 5. Every person has a right to bear arms for the defense of himself and the state.’

The penalty for the violation of each statute is the same. Section 16751 includes the offense charged as under section 16753. If the former is constitutional, and latter must be, if and in so far as it is applicable to the weapon herein involved.

*539 Section 16751 reads in part:

‘Sec. 3. It shall be unlawful within this state to manufacture, sell, offer for sale or possess any machine gun or firearm which can be fired more than sixteen (16) times without reloading or any muffler, silencer, or device for deadening or muffling the sound of a discharged firearm, or any bomb, or bomb shell, blackjack, slung shot, billy, metallic knuckles, sand club, sand bag, or bludgeon or any gas ejecting device, weapon, cartridge, container, or contrivance designed or equipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact.

The statute applies to all persons except peace officers, certain manufacturers, military and licensed persons, and contains no limitations of place, time, purpose, or use. It prohibits the possession of the enumerated weapons by any one, other than an excepted person, in private as well as in public, in the home or elsewhere, and whatever the purpose and contemplated use.

It is generally recognized that the constitutional declaration, in both Federal and State Constitutions, of the right to bear arms, had its origin in the fear of the American colonists of a standing army and its use to oppress the people, and in their attachment to a militia composed of all able-bodied men. Probably the necessity of self-protection in a frontier society also was a factor.

[1] Some courts have been so impressed with the historical background that they have held that the constitutional protection covers the bearing of such arms only as are a customary part of the equipment of a militiaman; and in Salina v. Blaksley, 72 Kan. 230, 83 P. 619, *540 3 L. R. A. (N. S.) 168, 115 Am. St. Rep. 196, 7 Ann. Cas. 925, it was decided that the Legislature may prohibit the bearing of arms anywhere except in a military organization provided for by law It is interesting to note that pistols and revolvers seem to have given these courts trouble in the application of the militia test. On the other hand, some courts, for various reasons, have extended the protection to weapons of all descriptions. The authorities cannot be reconciled except in respect of the proposition that, regardless of the basis of the right to bear arms, the state, nevertheless, has the police power to reasonably regulate it. 28 Harvard Law Review, 473; Aymette v. State, 2 Humph. (21 Tenn.) 154; Nunn v. State, 1 Ga. 243; Ex parte Thomas, 1 Okl. Cr. 210, 97 P. 260, 20 L. R. A. (N. S.) 1007; 40 Cyc. p. 853; State v. Workman, 35 W. Va. 367, 14 S. E. 9, 14 L. R. A. 600; Commonwealth v. Murphy, 166 Mass. 171, 44 N. E. 138, 32 L. R. A. 606; City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 3 L. R. A. (N. S.) 168, 115 Am. St. Rep. 196, 7 Ann. Cas. 925; Ex parte Thomas, 21 Okl. 770, 97 P. 260, 20 L. R. A. (N. S.) 1007, 17 Ann. Cas. 566; Strickland v. State, 137 Ga. 1, 72 S. E. 260, 36 L. R. A. (N. S.) 115, Ann. Cas. 1913B, 323; State v. Keet, 269 Mo. 206, 190 S. W. 573, L. R. A. 1917C, 60; and notes.

When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and composed of all able-bodied male citizens of Michigan and those of foreign birth who have declared their intention to become citizens, Comp. Laws 1929, § 629, is practically extinct and has been superseded by the National Guard and reserve organizations. If called to service, the arms are furnished by the state. Comp. Laws 1929, § 633. In times of peace, the militia, as such, is unarmed and the historical test would render the constitutional provision lifeless.

The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to ‘every person’ to bear arms for the ‘defense of himself’ as well as of the state. This *541 includes the right of a foreigner to possess a revolver for the legitimate defense of his person and property, subject, however, to the valid exercise of the police power of the state to regulate the carrying of firearms. People v. Zerillo, 219 Mich. 635, 189 N. W. 927, 24 A. L. R. 1115.

Some arms, although they have a valid use for the protection of the state by organized and instructed soldiery in times of war or riot, are too dangerous to be kept in a settled community by individuals, and, in times of peace, find their use by bands of criminals and have legitimate employment only by guards and police. Some weapons are adapted and recognized by the common opinion of good citizens as proper for private defense of person and property. Others are the peculiar tools of the criminal. The police power of the state to preserve public safety and peace and to regulate the bearing of arms cannot fairly be restricted to the mere establishment of conditions under which all sorts of weapons may be privately possessed, but it may take account of the character and ordinary use of weapons and interdict those whose customary employment by individuals **247 is to violate the law. The power is, of course, subject to the limitation that its exercise be reasonable, and it cannot constitutionally result in the prohibition of the possession of those arms which, by the common opinion and usage of law-abiding people, are proper and legitimate to be kept upon private premises for the protection of person and property.

We find no decisions in point upon an identical constitutional provision, but in People v. Persce, 204 N. Y. 397, 97 N. E. 877, 879, it was held that the Legislature may prohibit the possession of ‘instruments [a slung shot] which are ordinarily used for criminal and improper purposes and which *542 are not amongst those ordinary legitimate weapons of defense and protection which are contemplated by the Constitution and the Bill of Rights.’ See, also, People v. Warden, 154 App. Div. 413, 139 N. Y. S. 277; Andrews v. State, 3 Heisk. (50 Tenn.) 165, 8 Am. Rep. 8.

And in State v. Duke, 42 Tex. 455, the court said: ‘The arms which every person is secured the right to keep and bear (in the defense of himself or the State, subject to legislative regulation), must be such arms as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense, as well as such as are proper for the defense of the State.’

The list of weapons in section 16751, supra, is significant and demonstrates a definite intention of the Legislature to protest society from a recognized menace. It does not include ordinary guns, swords, revolvers, or other weapons usually relied upon by good citizens for defense or pleasure. It is a partial inventory of the arsenal of the ‘public enemy,’ the ‘gangster.’ It describes some of the particular weapons with which he wars on the state and reddens his murderous trail. The blackjack is properly included in the list of outlawed weapons. As defined in Encyclopaedia Britannica, it is ‘a bludgeon like weapon consisting of a lead slug attached to a leather thong. The more carefully constructed black jacks contain a spring within the handle which serves to ease the effect of the impact upon the wrist of the one who wields the weapon. The black jack has the reputation of being a characteristic weapon of urban gangsters and rowdies.’

[2] The statute does not infringe upon the legitimate right of personal or public defense, but is within the *543 reasonable and constitutional exercise of the police power of the state to curb crime.

Defendant challenged the supplemental procedure, charging him with being a fourth offender, on motion for a new trial, on the ground that no plea of guilty had been entered by him and no trial had, as shown by the records of the court.

[3] The statute, Comp. Laws 1929, § 17341, requires (a) the court shall inform defendant of the allegations contained in the supplemental information, and (b) of his right to be tried as to the truth thereof according to law, (c) that defendant be required to say whether he is the same person as charged in the information, and (d) that he plead guilty or be convicted, before he may be sentenced under it. The charge of habitual offender includes both the identity of the person alleged to have committed other felonies and the fact of his prior convictions.

The record of arraignment was: ‘Bernard Brown, defendant in this cause, having been duly arrigned at the bar in open court on a supplemental information charging fourth felony and the said information having been read to the defendant and the said defendant having been asked if he is the same person mentioned in the said information, and acknowledging that he is the same person, it is ordered now here that the said plea be, and the same is hereby accepted.’

The record of sentence reads: ‘Bernard Brown, the defendant in this cause, having been upon his plea of guilty convicted of the crime of fourth felony as appears by the record thereof,’ etc.

[4] The statement of plea of guilty in the entry of sentence refers back to the record as made. The *544 record as made does not show a compliance with the statutory duty of the court to inform the defendant of his rights nor a plea of guilty to the charge. It shows no more than that defendant acknowledged he was the person charged in the supplemental information, not that he admitted being the person charged in the previous offenses alleged therein nor that he had been convicted thereof. In People v. Palm, 245 Mich. 396, 223 N. W. 67, 68, the situation was different, as the record there recited that the defendant had pleaded guilty and that ‘said plea of guilty was voluntarily and understandingly tendered.’ It was not without some hesitation that the record was held sufficient in that case, as not affirmatively showing the statute had not been complied with. The ruling should not be extended. In this case, the record fails to show a plea of guilty covering the elements of the offense.

We appreciate that this ruling may seem technical and, in the instant case, may have no greater result than a retreating of formal ground. But the practice as outlined in the statute affords such opportunity for misunderstanding by a defendant, unless its effect is clearly explained to him, and the consequences of conviction of being a habitual offender are so serious that the procedure should be strictly pursued and the record of the court should show, in essentials at least, its observance.

The conviction by the jury is affirmed. The supplemental procedure and sentence are reversed, and the cause remanded to the circuit **248 court to pass sentence, without prejudice to such renewal of proceedings under the habitual criminal law as may be presented to it.


Mi. 1931
253 Mich. 537, 235 N.W. 245, 82 A.L.R. 341


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