30 F.2d 474 | D.C. Cir. | 1929
Plaintiff in error was charged in that court (count 1 of the complaint) with having unlawfully concealed about his person a deadly and dangerous weapon, to wit, a pistol; (count 2) with unlawfully carrying openly a deadly and dangerous weapon, to wit, a pistol, with intent unlawfully to use the same.
At the trial Harry G-. Bauer, a police officer, testified that he placed the plaintiff in error under arrest at 10:30 p. m. on December 12, 1922; that “he [the witness] saw a Cadillac ear speeding, and followed chase, and one of the occupants threw 2%-gallon bottles of liquor from car. ik * * As the witness rode up in another car, he saw the defendant, dressed in a fur coat, seated on the front seat of the Cadillac car; that he noticed the defendant take a pistol from the overcoat pocket; that one Pritchard was on the running board of the ear; that the gun was loaded.” On cross-examination, the witness stated that “in the glare of the spot light he noticed the defendant take the pistol from his pocket.”
Charles Fowler, a federal prohibition agent, who was present when the plaintiff in error was arrested, testified “that he [the witness] was in a Stutz roadster, which chased the ear which the defendant [plaintiff in error] was in, and that they pulled up, and that the witness fired at the ear in which the defendant Brown was, and smashed the gas tank.” The witness ■ then identified a rifle which was found in the back part of the pursued ear.
Plaintiff in error was the only witness for the defense. He testified “that he was invited
Thereupon, over the objection of plaintiff in error, the court instructed the jury that the words “concealed about the person,” found in the statute, do not necessarily mean “on tho defendant’s person,” and that, if the jury “thought the pistol was within the reach of the defendant,” then it would he a violation of the law.
Tho jury retired, and after considering the case returned, and, through the foreman, asked the court: “Would it he a violation of the law if the defendant had a pistol concealed in the automobile, though not on his person, hut within his reach?” The eourt, over the objection of plaintiff in error, answered in the affirmative. Thereupon the jury returned a verdict of “not guilty” on the second count, but “guilty” on the first count.
Section 855 of our Codo provides that “any person who shall within the District of Columbia have concealed about his person any deadly or dangerous weapon, or who shall carry openly any such weapon, with intent to unlawfully use the same, shall be fined not less than fifty dollars nor more than five hundred dollars, or he imprisoned not exceeding one year, or both. * * * ”
Plaintiff in error contends that the court bolow erred in instructing the jury that the words “concealed about the person” do not necessarily moan on tho defendant’s person.
What was the purpose of Congress in the enactment of this law? Obviously, the protection of the public from the menace of concealed “deadly or dangerous” weapons. No one familiar with present conditions will doubt tho necessity for such a statute. Its purpose is wholesome, ánd it is the duty of tho court, in construing it, to have “in mind the legislative intent.” United States v. Celia, 37 App. D. C. 423, 430.
The statute prohibits the carrying of a concealed deadly or dangerous weapon “about” the person. The word “about” is a comprehensive term, and we must assume that Congress intended that it should be accorded such an interpretation. Had it been intended to limit tho prohibition to the carrying of such a weapon on the person, it must he assumed that Congress would have used tho word “on,” instead of “about.”
Thus, in State v. McManus, 89 N. C. 555, the,court said: “It is insisted that tho pistol, if in the basket and concealed, was not about the person of the defendant, though upon his lap. Such is not the meaning of tho statute. The language is not ‘concealed on his person,’ but ‘concealed about his person’; that is, concealed near, in close proximity to him, and within his convenient control and easy reach, so that ho could promptly use it, if prompted to do so by any violent motive. * * * It makes no difference how it is concealed, so it is on or near to and within the reach and control of the person charged.” The court further observed that tho purpose of the statute was wholesome, and that it should receive such reasonable construction as would effectuate its purpose. To tho same effect are Wagner v. State, 80 Tex. Cr. R. 66, 188 S. W. 1001; Boles v. State 86 Ga. 255, 12 S. E. 361; Willis v. State, 105 Ga. 633, 32 S. E. 155; State v. Conley, 280 Mo. 21, 217 S. W. 29; Schraeder v. State, 28 Ohio App. 248, 162 N. E. 647; People v. Niemoth, 322 Ill. 51, 152 N. E. 537; Livesey v. Helbig, 87 N. J. Law, 303, 94 A. 47.
Other courts have taken a somewhat different view (State v. Brunson, 162 La. 902, 111 So. 321, 50 A. L. R. 1531; Ladd v. State, 92 Ala. 58, 9 So. 401; State v. Weston, 108 S. C. 383, 94 S. E. 871); but, as between an interpretation that will effectuate the obvious intent of our statute and one that will largely frustrate that intent, we unhesitatingly adopt the former. To rulo that the weapon must be on the person would make possible the carrying of a deadly weapon concealed on the seat of an automobile, where it would be more readily accessible than it would be if concealed on the person. No such result is contemplated or permitted by the statute.
We rule, therefore, that the words “concealed about his person,” as used in the statute, were intended to mean and do mean concealed in such proximity to the person as to be convenient of access and within reach. This, in effect, is what the court below charged.
Judgment affirmed.
Affirmed.
