4 So. 2d 700 | Fla. | 1941
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The record here discloses that Mose Watson was found guilty of the violation of Sec. 7202 C. G. L. by the Circuit Court of Volusia County, Florida, on an agreed statement of facts, viz:
"Mose Watson, not being a Sheriff, or any other officer within the exceptions of Section 7202 C. G. L. Fla. 1927, at about 3:00 A. M. on February 10th, 1941, while riding on the right front seat of an automobile which he then and there owned and controlled, which automobile was then and there being driven along a street in the Town of Holly Hill, in the 8th Justice of the Peace District of Volusia County, Florida, did have a pistol belonging to him in the glove pocket attached to the inside of the dash of said automobile, immediately in front of the seat which he occupied, *518 where it was readily accessible to him, without having a license to carry said pistol around with him as required by Section 7202 C. G. L. Fla. 1927."
The question presented for decision is whether or not Mose Watson, from the agreed statement of facts, is guilty of the violation of Sec. 7202 C. G. L., in that he carried around with him or had in his manual possession the pistol without first obtaining a license. The statute supra was enacted in 1893 and amended in 1901.
This is a case of original jurisdiction. It is fundamental that a writ of habeas corpus cannot be used as a substitute for a writ of error, appeal or petition for writ of certiorari. Neither can it be used as a remedy for relief against imprisonment under a warrant or indictment that charges a criminal offense defectively or inartificially. It is settled that a person held in confinement under a state of facts which constitutes no offense under the law is held unlawfully and may be discharged from such confinement on writ of habeas corpus. See McLeod v. Chase,
Rules for the construction of statutes are recognized by this Court. Penal laws should be strictly construed and those in favor of the accused should receive a liberal construction. See Sanford v. State,
The statute makes it unlawful for persons without first obtaining a license therefor: (a) to carry around with him a pistol, Winchester rifle or other repeating rifle: (b) or to have a pistol, Winchester rifle or other repeating rifle in his manual possession. Was the pistol while in the dash drawer of the automobile when being driven by the petitioner in his manual possession, or did he under the aforesaid circumstances carry it around with him within the meaning of the statute? It is not contended that he had a license "to carry the pistol around with him" or "to have the pistol in his manual possession."
Section 20 of the Declaration of Rights of the Constitution of Florida provides that "the right of the people to bear arms in defense of themselves . . . shall not be infringed but the Legislature may prescribe the manner in which they are borne." See State, ex rel. Russo v. Parker,
This is a case of first impression and it is necessary to consider and examine cases of other jurisdictions having similar statutes. We find two rules of construction: (a) a weapon is carried on or about the person when it is in a motor vehicle in which the defendant is riding and the weapon is within his possession and control. This rule is applicable when the weapon is on, under, or behind the seat or cushion, the door, side, floor or pocket of the automobile. (b) The other rule is that the weapon is not carried on or about the person when it is under the seat, cushion, door, side floor, or pocket of the automobile. See 68 C. J. 35 par. 26.
The Supreme Court of Louisiana recognized the rules in Brunson v. State,
Scrutiny of these several statutes disclose a dissimilarity to Sec. 7202 C.G.L. in the expression "carrying a *521 pistol around with him or having a pistol in his manual possession," which said section makes unlawful. The burden of proof was on the State to show that the petitioner carried a pistol on his person around with him, or to establish that he had a pistol in his manual possession. The absence of the words "on" and "about" from Sec. 7202, supra, clearly, distinctly and undisputably distinguishes it from statutes of other jurisdictions making it unlawful for the weapon of the defendant to be on, under or behind the seat, cushion, door, side floor or pockets of an automobile. When a pistol is in the pocket of an automobile, both owned by the driver, it cannot be said that it is in the personal manual possession of the owner, and especially is this true in the light of the holding of this Court in the case of Rogers v. Cunningham, supra, to the effect that the accused must be plainly and unmistakably brought within the statute to justify a conviction.
In the case of City of Leesburg v. Ware,
"It appears that there was no suspicion of fraud in the transaction; that Mr. Ware acted for the trustees, if not at their express request, certainly by implied permission, and in the best of good faith and in the interest of the fund because he deemed it prudent in view of the precarious condition of the times to remove the money from the bank and invest it in municipal bonds authorized by the legislative enactment to be issued.
"Section 7472, C. G. L., 1927,, does not apply. The bonds purchased by the trustees were neither supplies, *522
goods nor materials. In the first place it is a criminal statute and should be construed strictly. Atlantic Coast Line R. Co. v. State,
"Nothing should be regarded as included within its meaning that is not within its letter and spirit. If there is doubt or ambiguity in its provisions leaving a doubt as to their meaning the provisions are to be construed in favor of life and liberty. Snowden v. Brown,
The rule of construction of penal statutes approved by this Court in the case of City of Leesburg v. Ware, supra, is in accord with the United States Supreme Court as expressed in Bolles v. Outing Company,
"The statute, then, being penal, must be construed with such strictness as to carefully safeguard the rights of the defendant and at the same time preserve the obvious intention of the legislature. If the language be plain, it will be 1construed as it reads, and the words of the statute given their full meaning; if ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial. In both cases it will endeavor to effect substantial justice. United States v. Hartwell, 6 Wall. 385; United States v. Wiltberger, 5 Wheat. 76, 95; American Fur Co. v. United States, 2 Pet. 358; United States v. Reese,
The business men, tourists, commercial travelers, professional men on night calls, unprotected women and children in cars on the highways day and night, State and County officials, and all law abiding citizens *523 fully appreciate the sense of security afforded by the knowledge of the existence of a pistol in the pocket of an automobile in which they are traveling. It cannot be said that it is placed in the car or automobile for unlawful purposes, but on the other hand it was placed therein exclusively for defensive or protective purposes. These people, in the opinion of the writer, should not be branded as criminals in their effort of self preservation and protection, but should be recognized and accorded the full rights of free and independent American citizens. The statute, supra, was enacted prior to the advent of the automobile and several sessions of the Florida Legislature have since intervened without modifying, amending or altering the Act thereby making it unlawful to carry in an automobile firearms, and the rule of strict construction applicable to penal statutes precludes or fails to bring the petitioner within the spirit or letter of the statute and for this reason he should be discharged.
The petitioner is hereby discharged.
BROWN, C. J., WHITFIELD, and ADAMS, J. J., concur.
BUFORD, J., concurs specially in judgment of discharge.
TERRELL, and THOMAS, J. J., dissent.
Concurrence Opinion
I concur in the judgment discharging the Relator because I think that Section 5100 R. G. S., 7202, C. G. L., is unconstitutional because it offends against the Second Amendment to the Constitution of the United States and Sec. 20 of the Declaration of Rights of the Constitution of Florida.
Proceedings in habeas corpus will lie for the discharge of one who is held in custody under a charge *524
based on an unconstitutional statute. Lewis v. Nelson,
The statute, supra, does not attempt to prescribe the manner in which arms may be borne but definitely infringes on the right of the citizen to bear arms as guaranteed to him under Sec. 20 of the Declaration of Rights of the Florida Constitution.
I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. The same condition existed when the Act was amended in 1901 and the Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied. We have no statistics available, but it is a safe guess to assume that more than 80% of the white men living in the rural sections of Florida have violated this statute. It is also a safe guess to say that not more than 5% of the men in Florida who own pistols and repeating rifles have ever applied to the Board of County Commissioners for a permit to have the same in their possession and there has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention to the Constitution and non-enforceable if contested. *525
Dissenting Opinion
The majority opinion by Mr. Justice CHAPMAN, concurred in by Mr. Justice BUFORD, as I read it, is predicated on the interpretation of Sec. 7202, Comp. Gen. Laws of 1927, in the light of Sec.
The Supreme Court of the United States has repeatedly held that the right to bear arms existed long before the adoption of the Federal Constitution, that it was not granted by nor was it in any manner dependent on that instrument for its existence. All the Second Amendment means is that the right to bear arms shall not be infringed by Congress. United States v. Cruikshank,
Section
Sec. 20 of the Declaration of Rights 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 outlaw, "pistol toter," and irresponsible man who is prone to load his stomach with liquor and rum, his pockets with pistols and his automobile with machine guns and make himself a nuisance to society. Carlton, et al. v. State,
Constitutional validity should not be adjudicated if the question raised can be disposed of on any other theory. State v. Parker,
It has been repeatedly held that a pistol may be considered as concealed on or about the person if carried under the seat, pushed down behind the cushion, placed in the pocket inside the left front door or carried in a satchel on the floor of the automobile. Brown v. United States, 30 F.2d 474; Porallo *527
v. State,
I therefore dissent and think the petitioner should be remanded.
