State v. Nielsen , 544 P.2d 489 ( 1975 )

HENRIOD, Chief Justice:

Appeal from a conviction at a jury trial of a class A misdemeanor under Title 76-10-503, Utah Code Annotated 1953 (1975 Pocket Supp., Vol. 8, p. 172) for 1) having possession of a dangerous weapon, 2) after having been convicted previously of a crime of violence, — with no quarrel as to 2). Affirmed.

The jury was out 20 minutes, after having heard testimony supportive of its verdict, abbreviated as follows:

Defendant was paroled after commitment for a crime of violence. He indulged an argument with one Adams at a lounge, and requested a friend, Smith, to take him home. At home he changed clothes and returned to the lounge with Smith, who said defendant had a gun clip (which was stipulated would not be probative of the charge). The owner of the lounge said he saw defendant in possession of what he thought was a gun. A patron said he saw a gun in defendant’s hand. Another patron said she saw the gun in his hand and that Nielsen told the lounge owner if he called the police he would kill him. Several defense witnesses said they saw no gun.

The defendant urges that the trial court erred 1) in giving Instructions 6 and 7 and in 2) denying defendant’s requested Instruction No. 1.

Instructions 6 and 7 were to the effect that to convict defendant beyond a reasonable doubt, he must have “had a gun in his possession” and that “a pistol-type handgun is a dangerous weapon” under the law, but that a “gun clip alone with or without cartridges is not a dangerous weapon.”

Defendant urges that the instruction should have said “dangerous weapon” instead of “gun,” since Section 76-10-501 of the statute defines the former as “any item that in the manner of use or intended use is capable of causing death or serious bodily injury,”. — and that consequently, the jury, according to defendant, “could have concluded that the defendant either had a magazine with unexpired cartridges, a clip for a handgun, or a pistol-type gun,” — the implication being that the first two mentioned “items” would not qualify as “dangerous weapons.” Difficulty with such argument is that 1) the jury obviously did not conclude the defendant possessed only a magazine or a clip, but 2) concluded that he held a “gun.” By any kind of syllogistic reasoning, the instruction was more favorable to defendant than not, since the jury was restricted to and required to find defendant had a “gun” and not some other “item” that may or may not have been a “dangerous weapon.” Had they found that he possessed any item other than a “gun” that actually did constitute a “dangerous weapon,” nonetheless the jury, under the instructions would have been required to acquit him and the State and the Court would have been stuck with an instruction more restrictive than need it have been— more to the advantage of defendant. It seems difficult to understand how the defendant could complain under such an atmosphere of favorability. We believe the statute’s purpose was to deter those convicted of violent crimes from thereafter having guns, loaded or unloaded.

The instruction requested by defendant and denied by the Court was pretty much consonant with the statute and sufficiently covered by other instructions of the Court, as not to be categorized as one whose failure to give would have constituted reversible error.

CROCKETT and TUCKETT, JJ., concur.