McMillen v. United States
407 A.2d 603
D.C.
1979
Check Treatment

*2 KELLY, Before HARRIS, KERN and requested by appellant The Judges. Associate in totality of the red book standard Jury struction. See Instructions Criminal KELLY, Judge: (3d for the District No. 4.81 of Appellant was carrying convicted of ed. ele recently restated the without a license. D.C.Code weapon ments the crime of § 22-3204. questions He appeal on license, in the red without outlined propriety aof jury certain instruction. We instruction, book in dictum Jackson affirm. States, (1978): D.C.App.,395 At appellant “This three essential elements: offense has testified he was a resident Hampton, (1) (2) Virginia, operable pistol, without a and that he purchased lawfully gun license, (3) two there. Af- to do those the intent ter a short visit to Washington, he was on acts.” Id. at n. several 103 his way Hampton back to he when support proposi cases were cited in stopped for running light. a red At that tion, indicates that analysis those cases time, he arresting told the officer that he the crime was description elemental gun. had a theory His at trial was that book exclusively based almost red since he did not know that he must be instruction. See Anderson v. licensed in the District in order carry a 807 A.2d gun there, he could not have had the intent 1405, 43 L.Ed.2d U.S. carry gun without (1975)(discussion no discus operability; intent); sion of Mitchell United court, however, declined to in- (no (1973) require D.C.App., 302 jury struct the in a manner consistent with showing weapon ment of theory use of the case. It told the jury: to do purpose, criminal act); v. United Brown

The essential elements of carrying a (1949) D.C.Mun.App., 66 A.2d license, which each of (elements num only crime included Government must prove beyond reason- doubt, (2) above); are, first, able bers that the defendant 275 F.2d 887 openly carried concealed, or on or about person, his failure pistol. (1960) (no plain court’s Secondly, that the an unlicensed operable, that is func- instruct tioned in as a that he Third, gun testified the de- where defendant fendant was not tentionally gun). licensed to at the conclusion Jackson, In The trial court cite or discuss Brown v. 379 A.2d in accord- trial refused a case on all fours with the instruc- “red book” the standard ance with present Brown, case. crime particular for the tion brought jurisdiction into without last omitted issue here and instead *3 knowing pos- required that licensure was to forth charge as set phrase contained in the sess a here. Jury Instruc- in No. 4.81 of the Criminal noted, procedural grounds, decided (3d ed. for the District of tions again dictum, that “the act is court’s refusal urges the Appellant generally intending pistol a in full employ coupled pistol with the fact is that such error. constitutes reversible in the unlicensed District of Colum- ” this omission given with the instruction as bia. . . . Id. at 710 n. 3. error; however, circumstanc- under the are, course, We bound by neither es, it was harmless error. Brown dictum nor the Jackson dictum. We are, however, persuaded to follow the state- deference, majority’s With all ment in Brown. proach unduly extended my in view has Carrying a is a without a license 22-3204, statute, 1973, to make § law, crime unknown to the and common By liability. the crime one of strict therefore the common law criminal intent judge’s approving the element apply. Logan does not See Unit- government placing upon which omits 822, ed D.C.App., 402 A.2d intent general a proving the burden of (1979); Mitchell v. supra at crime, the ma- commit one element excep- The statute does have limited prosecution of potential jority sanctions See, id.; tions. g., e. Cooke care with due good one who in faith and 224, U.S.App.D.C. at whose a license to obtains F.2d at 888. The has a District of Columbia invalid. faulty or license is somehow great protecting citizenry interest strict lia- results statutory construction dangers widespread from the inherent ownership weapons, authority McIntosh v. see contrary bility which Washington, 744, D.C.App., 395 A.2d statutory the rules of construction. (1978); States, supra Cooke v. States, D.C.Mun. In Brown v. United 889, U.S.App.D.C. at 275 F.2d at this court (1949), App., 66 A.2d legitimate attaining licensure is a means of lack placed proving burden goal. Appellant effectively cannot deciding that government license on rely upon a contention that he was unaware composed act proscribes of the law. See McIntosh v. pistol, (1) carrying the two elements: supra at 756. In Cooke Finding that the trial court’s instruction F.2d 887 U.S.App.D.C. error, to the was not in appellant’s construed appellate the federal judgment of conviction is general require proof of 22-3204 to Affirmed. prove a is needed “All that [to intent.1 is an provision] such code violation of KERN, Judge, concurring: v. Unit proscribed act.” [do] My approach to this case differs from at States, supra, 107 ed me majority that of the still leads govern Thus, 275 F.2d at 889. the conclusion that conviction doubt reasonable prove beyond ment must without a license must act, which be to commit general affirmed. ground Nonetheless, against repeated at- there have been specific tempts, prove as in Brown v. United was bound part 379 A.2d 708 and here of a defendant. to defend tent on elements, composed act is of two it must the defendant to

be without a pistol.2 license when pointed out in Brown v. United

States, supra statute “[t]he being criminal, penal, prohibitive,

[22-3204] derogation law,

and in common it must given

be a strict rather than a liberal (Emphasis added.)

struction.”

For these opinion reasons I am

court erred in failing the “red book”

instruction. However, because of over-

whelming against appellant evidence

the lack any evidence that

unaware that he was without a license District,

the court’s instruction on intent harm-

less. Hall v. (1978). Accordingly,

agree that the be upheld. conviction should ELECTRIC

WESTINGHOUSE

CORPORATION, Appellant, al., Appellees.

Edgar et M. NUTT

No. 13117.

District of Columbia Court 16, 1979.

Argued Jan. 10, 1979. En Banc Rehearing

Rehearing and Dec.

Denied Mitchell v. United any tent There does not seem to be confusion element; (1973). other settled seems