Watson v. Stone , 148 Fla. 516 ( 1941 )

[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, 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, 95 Fla. 376a, 116 So. 859; Brown v. Watson, 116 Fla. 56, 156 So. 327; McCreary v. State, ex rel. Garrison, 124 Fla. 330, 168 So. 422.

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, 75 Fla. 393, 78 So. 340. In the construction of penal statutes, if there is any doubt as to its meaning, the Court should resolve the doubt in favor of the citizen. See State, ex rel. Cherry v. Davidson, 103 Fla. 954, 139 So. 177. Any doubt or ambiguity in the provisions of criminal statutes are to be construed in favor of the citizen, life and liberty. See City of Leesburg v. Ware,113 Fla. 760, 153 So. 87. Statutes prescribing punishment and penalties should not be extended further than their terms reasonably justify. See Snowden v. Brown, 60 Fla. 212,53 So. 548. If doubt exists as to the construction of a penal statute, it is the duty of the court to resolve such doubt in favor of the citizen and against the State. Accused must be plainly and unmistakably within the criminal statute to justify conviction. See Rogers v. Cunningham, 117 Fla. 760, 158 So. 430. The statute before us was enacted prior to the advent of automobiles and it cannot be said that the Legislature intended by its enactment to make unlawful the carrying of a pistol in the pocket of an automobile, as set out in the agreed statement of facts.

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, 57 Fla. 170, 49 So. 124; Carlton v. State, 63 Fla. 1, 58 So. 486. The Legislature has the constitutional power to enact laws regulating the carrying of weapons. See 68 C. J. page 80, pars. 4 and 5.

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, 162 La. 902, 111 So. 321, 50 A. L. R. 1531. The distinction in the two rules turns on the meaning of the words "on or about the person" in the State of Tennessee, Missouri, North Carolina and Texas, and the Federal Courts and others hold that the words "on" and "about" in the expression "on or about the person" to mean: "on" means "attached to" and "about" means "in close proximity to or in easy reach of." The Courts of the States of Alabama, Virginia, Kentucky, Georgia, South Carolina and other jurisdictions hold that the words "on or about" in the expression "on or about the person" are synonymous terms and refer to the person and not the automobile.

Scrutiny of these several statutes disclose a dissimilarity to Sec. 7202 C.G.L. in the expression "carrying a 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, 113 Fla. 760,153 So. 87, the Court considered, among other things, a criminal statute (being Sec. 7472 C. G. L.) and in part said:

"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, goods nor materials. In the first place it is a criminal statute and should be construed strictly. Atlantic Coast Line R. Co. v. State, 73 Fla. 609, 74 South Rep. 595.

"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, 60 Fla. 212, 53 South Rep. 548; Sanford v. State, 75 Fla. 393, 78 So. 340; Texas Co. v. Amos,77 Fla. 327, 81 South. Rep. 471."

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, 175 U.S. 262, 20 Sup. Ct. 94,44 L.Ed. 156, when it said:

"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,92 U.S. 214."

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 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.