Pierce v. State , 42 Okla. Crim. 272 ( 1929 )

I cannot concur in the views of the majority opinion, wherein it holds that the defendant could carry the pistol he was carrying from room to room in his home but could not carry it into his yard, the curtilage of his home. Section 26, art. 2, of the Constitution of Oklahoma, is as follows: "The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons."

Section 1992, C.O.S. 1921, being the section under which this defendant is prosecuted, is as follows: "It shall be unlawful for any person in the State of Oklahoma to carry upon or about his person any pistol, revolver, bowie-knife, dirk-knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided."

Under the Constitution, supra, the Legislature has regulated the carrying of weapons. There is no law which prohibits the defendant from owning and possessing the pistol he was carrying, for which he was arrested and convicted. It is urged by the defendant that, under section 26, art. 2 (Bill of Rights), he committed no offense, and that the evidence introduced by the state against him is insufficient to sustain a conviction. With this contention I agree. Several opinions of the court are cited in the majority opinion, none of which are applicable to the facts in this case, for the reason the party charged in the cases cited was away from his home and in a public place. There is no dispute as to the facts. All the evidence shows that the witnesses against the defendant went to defendant's home possessed with a search warrant to search the same; that, when they arrived at his home and advised the defendant that they had a search warrant to search his home, the defendant raised no objections; at the time of their arrival, the defendant had the pistol he is charged with unlawfully carrying stuck under his belt on the right side, in the top of his pants; that the officers found nothing called for in the search warrant. The testimony shows that, while they were searching, the pistol still being in defendant's belt where it was when they first arrived, the defendant walked into the yard, the curtilage of his home, and back into the house.

The search was completed by the officers without finding anything called for in the search warrant. They then took the pistol from the defendant and arrested him for unlawfully, willfully, and wrongfully carrying about his person a Colt's automatic revolver. The defendant insists that the testimony in this case is insufficient to sustain a conviction, for the reason that he was not carrying the pistol in violation of our statute; that, being at home and in his yard, the curtilage of his home, he had a right to own and possess the pistol he was carrying, and to carry it in his house and upon his yard, the curtilage of his home; and that in so doing he was not violating the law prohibiting the carrying of weapons. This seems to be the first time in the history of the criminal courts that any one has ever been arrested for carrying a weapon in his own home or within his yard, the curtilage of his home, under a statute regulating the wearing or carrying of a pistol. Many cases are found where the defendant has been arrested for carrying weapons in violation of the statutes of his state, yet I fail to find any where a man has been arrested and convicted for carrying a weapon that he had a right to own and possess in his house or in his yard, the curtilage of his home, nor does the majority opinion cite any case from any court in this or any other state where the defendant has ever been convicted for carrying a pistol in his home or his yard.

After a careful search of authorities, trying to find one case to sustain the majority opinion, I have failed. I find a case not exactly in point, but by analogy may be construed in defendant's favor. In Tucker v. State, 105 S.W. 499, the Court of Criminal Appeals of Texas, in passing upon the question, made the following statement:

"It is contended that the evidence is not sufficient. There seems to be no practical contradiction in the evidence that appellant was arrested at home and carried by the officers to the county seat, and while en route was searched for weapons and none found. Upon reaching the jail, he was again searched and a knife found upon him, which the witnesses testified was not a dirk, and did not know whether it was a bowie knife or not, that it did not correspond with the definition of a bowie knife, and they did not know what sort of a knife it was."

The court further said:

"It is the state's case that he was arrested at his home, and carried under arrest to the county seat and placed in jail. When arrested at home, he had on the knife, and had no opportunity to get it at any other time or place, and being under arrest his actions were not voluntary, but in obedience to the wish and will of the officers."

"If he had carried the knife himself unfettered by the arrest off his premises, he might be guilty, but we do not believe the law intended, nor is it the law, that a party having on his person a pistol, or any interdicted weapon at his home, and being forced away with it on him, that it would be such a carrying of an inhibited weapon as would make him subject to punishment."

From an examination of the record, the defendant was at his home where he had a right to be, exercising peaceably his rights, and, in the exercise of those rights, he was not interfering with any other individual. I cannot believe that the defendant, by carrying the pistol in his house and into his yard, the curtilage of his home, violated the statute of this state. I do not believe that the intention of the Legislature, when it enacted the law regulating the carrying of weapons, intended to abridge the sacred right of a citizen of the state by prohibiting him from doing a certain thing within the walls of his home, and to say that he could not do the same in his yard, the curtilage of that home. From time immemorial, the home, be it ever so humble, has been sacred — the castle of the occupant — with the right to repell invasion or any trespass thereon. For centuries the right to occupy that home has gone unchallenged. The curtilage to the home is a part of that home, and no court, so far as I have been able to find, has ever attempted to abridge the rights of the occupant of the home and to the exercise and use of the curtilage the same as the home. Without the unrestricted use of the curtilage, the home would be useless. To say that an individual may own and possess, and have the right to carry from one room to another in the house, a pistol, but that he cannot carry it into the yard, the curtilage, in my judgment strikes at the very foundation of the privacy of the home; its sacred protection that has been thrown around it since the organization of a home would be destroyed. The regulations of the carrying of weapons, in my judgment, was not intended to restrict the rights of an individual in his home and the curtilage thereto.

I think that the defendant was wrongfully convicted; that he violated no law when he was in his home or curtilage thereto in carrying the pistol he carried, and that his objections to the evidence were well taken and should have been sustained, and that the evidence is insufficient to sustain a conviction, and should be reversed, with directions to discharge the defendant.