Summary
In People v Jones, 12 Mich App 293, 296-297; 162 NW2d 847 (1968), a police officer placing the defendant under arrest noticed what appeared to be the butt of a pistol poking out of the defendant's pocket.
Summary of this case from People v. MackOpinion
Docket No. 3,716.
Decided June 28, 1968.
Appeal from Genesee, Freeman (Donald R.), J. Submitted Division 2 April 2, 1968, at Lansing. (Docket No. 3,716.) Decided June 28, 1968.
Johnnie W. Jones was convicted of carrying a pistol concealed on his person without a license. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Assistant Prosecuting Attorney, for the people.
T. Boice Purdy, for defendant.
Defendant appeals his conviction and sentence on a charge of carrying a pistol concealed on his person without a license. The case was heard by the trial court sitting without a jury.
CL 1948, § 750.227 (Stat Ann 1962 Rev § 28.424), reads in pertinent part: "Any person who shall carry a pistol concealed on or about his person * * * without a license to so carry said pistol as provided by law shall be guilty of a felony."
On the night of July 16, 1966, two officers of the Flint police department, assigned to cruiser duty, stopped the defendant for speeding within the city limits. One of the officers approached the automobile and asked defendant for his driver's license. When defendant failed to produce the license, the officer placed him under arrest and asked him to step out of the car. At trial the arresting officer gave the following testimony on the issue of concealment:
"Q. As he exited the automobile, what, if anything, occurred?
"A. At this time, I thought — I observed something which appeared to be the butt of a gun poking out of his pocket when he exited the automobile and I immediately had him raise his hands. And, at this time, I removed a gun from his pocket."
The information charged defendant with carrying the gun concealed in his right front trousers pocket.
The gun was identified as a .38 caliber revolver. The defendant did not have a license to carry a concealed pistol. Defense counsel did not cross-examine the arresting officer or offer any evidence.
Defendant's principal contention is that the evidence was insufficient to prove him guilty beyond a reasonable doubt. He argues without citation of any authority that the concealed weapons statute was not violated because the arresting officer saw what appeared to be the butt of a gun protruding from his pocket.
We do not think that the word "concealed" as used in the statute means total concealment. The words of a penal statute must be read in the light of the evil sought to be corrected, Hightower v. Detroit Edison Co. (1933), 262 Mich. 1, and to effect the objects of the law. CL 1948, § 750.2 (Stat Ann 1962 Rev § 28.192).
"The purpose of all concealment statutes is clear. At the time they were enacted, the open carrying of weapons upon the person, was not prohibited. The purpose of the concealed weapons statutes was to prevent men in sudden quarrel or in the commission of crime from drawing concealed weapons and using them without prior notice to their victims that they were armed. The person assailed or attacked would behave one way if he knew his assailant was armed and perhaps another way if he could safely presume that he was unarmed." People v. Raso (1958), 9 Misc.2d 739 ( 170 N.Y.S.2d 245, 251).
See, also, People v. Bailey (1967), 7 Mich. App. 157.
The evident statutory purpose is reflected in the general rule applied in other jurisdictions that absolute invisibility is not indispensable to concealment of a weapon on or about the person of a defendant, and that a weapon is concealed when it is not discernible by the ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life. 94 CJS, Weapons, § 8e, p 494; 56 Am Jur, Weapons and Firearms, § 10, pp 996-998; Annotation: 43 ALR2d 492, 510-15. See, also, Driggers v. State (1899), 123 Ala. 46 ( 26 So. 512); Mularkey v. State (1930), 201 Wis. 429 ( 230 N.W. 76); People v. Eustice, et al. (1939), 371 Ill. 159 ( 20 N.E.2d 83); State v. Rabatin (1953), 25 N.J. Super. 24 ( 95 A.2d 431); Prince v. Commonwealth (Ky, 1955) ( 277 S.W.2d 470); Kennedy v. State (1966), 171 Neb. 160 ( 105 N.W.2d 710); Shipley v. State (1966), 243 Md. 262 ( 220 A.2d 585); State v. Tate (Mo, 1967) ( 416 S.W.2d 103).
The case of People v. Morris (1967), 8 Mich. App. 688, supports the proposition that absolute invisibility is not required. This Court held in Morris that a straight razor carried in the pocket is concealed within the meaning of the concealed weapons statute, although the shape of the razor could be seen through the pocket by the arresting officer.
The issue of concealment depends upon the particular circumstances present in each case and whether the weapon was concealed from ordinary observation is a question for the trier of fact to determine. Commonwealth v. Butler (1959), 189 Pa. Super. 399 ( 150 A.2d 172); Mularkey v. State, supra; State v. Mangum (1924), 187 N.C. 477 ( 121 S.E. 765). The arresting officer's testimony was competent evidence to support a finding by the trier of fact that the defendant carried a concealed weapon on his person.
Affirmed.
T.G. KAVANAGH and FOLEY, JJ., concurred.