620 So. 2d 661 | Ala. Crim. App. | 1991
Cedrick Johnson, the appellant, was convicted of unlawfully possessing a pistol in violation of Ala. Code 1975, §
"(a) No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his possession or under his control."
This is a "strict liability" offense in the sense that nocriminal intent is required for its commission. In Fielding v.State,
Fielding,"It is the act of carrying the pistol concealed about the person which the law condemns, and it is, therefore, unimportant whether there was a particular intent to carry it concealed or not. If carried concealed carelessly or indifferently, it is a violation of the law. The charges requested by the defendant relative to his intent as to the manner of his carrying the pistol were properly refused. Barker v. State,
126 Ala. 83 ,28 So. 589 [1900]."
In Dickerson v. State,
The general rule is stated in 94 C.J.S. Weapons § 5 (1956):
"While intent is an indispensable element of the crime of carrying a weapon, and of unlawful possession, under some statutes, . . . the intent deemed indispensable is merely the intent to do the prohibited act, rather than the intent to violate the law, with the result that it has been held that the intentional doing of the prohibited act constitutes in itself a complete criminal offense, irrespective of the purpose or motive of accused, unless the purpose is of a kind permitted by the statute." (Footnotes omitted.)
The federal counterpart to our §
"It shall be unlawful for any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."
To sustain a conviction for this offense, "the government must show that an accused's possession of a firearm was knowing and wilful, but it does not have to show that the accused knew that he was a felon, or knew that it was unlawful for him to possess the firearm." Annot., 13 A.L.R.Fed. § 11 (1972) (discussing former 18 U.S.C.App. § 1202(a), which was repealed in 1986, Pub.L. No. 99-308, § 104(b), 100 Stat. 459 (1986), and which was essentially the same offense as that found in current
In this case, the State proved that the appellant "intended" to possess the pistol. The pistol was discovered under the driver's seat of the automobile the appellant had been driving. When the appellant got out of the car he was wearing a shoulder holster. Immediately before the automobile was stopped by the police, it appeared that the appellant was placing something under the seat. The appellant had a pistol permit.
Under Alabama law, a strict liability offense is one in which "[t]he minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing." Ala. Code 1975, §
"Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability."
Ala. Code 1975, §
"Knowingly" is a culpable mental state. §
In a prosecution for a violation of the unlawful possession of drugs, "[k]nowledge by the accused of the presence of the controlled substance is an essential element and prerequisite to conviction for the offense of illegal possession of a controlled substance under the Alabama Controlled Substances Act." Ex parte Wells,
In accord with the above authorities, we hold that in order to prove a violation of §
To the extent that this issue was raised in the appellant's motion for a directed verdict of acquittal and motion for a new trial, those motions were properly denied.
Section
Burglary and theft are defined in the Alabama Criminal Code, §
No objection raising this issue was presented to the circuit court. "Matters not objected to at trial cannot be considered for the first time on appeal, since review on appeal applies only to rulings by the trial court." Adams v. State,
The fact that one has a permit to carry a pistol is not a defense to a prosecution for the unlawful possession of a pistol after a conviction of a crime of violence.
Crawford v. State,"[I]t is clear to this court that any person who has been convicted of committing or attempting to commit a crime of violence is not a suitable person to be licensed to own a pistol or have one under his possession or control. The sheriff therefore had no authority to issue a pistol permit to the appellant and the license is void."
Mason v. State,"The effect of this act [§
13A-11-72 ] was to vest in the people of Alabama a real and vital social interest designed to enhance their own protection. Such interest vested in the society of this State upon the appellant's conviction of murder in the second degree on 30 March 1939. It cannot properly be deemed to have been vitiated or destroyed by the pardon granted the appellant in 1950."
Ex parte Maddox,"The appellate courts of this state are generally prohibited from reviewing the propriety of a sentence which is within the statutorily prescribed limits. . . . However, the appellate courts may review a sentence, which, although within the prescribed limitations, is so disproportionate to the offense charged that it constitutes a violation of a defendant's Eighth Amendments rights."
The appellant's 40-year sentence is well within the statutory range of punishment. With two prior felonies, the appellant could have been sentenced to a maximum of 99 years' imprisonment or life. §
Contrary to the appellant's argument, we find that the offense of which he was convicted is not a "nominal" crime. The statute defining that offense "evinces a clear intention on the part of the legislature to protect the citizens of this State from the actions of that class of persons, who by their past acts, have shown themselves unsuitable and unfit to own and possess pistols. The classification is warranted, and the provision clearly a reasonable exercise of police power."Mason,
The appellant's sentence of 40 years' imprisonment is well within the exercise of the trial judge's discretion. No abuse of that discretion has been shown. Therefore, this court will not set aside that sentence.
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.