Cite as McCray v. City and County of Denver, 144 Colo. 1 (Colo. 1960)

               Darlene McCray, Plaintiff in Error,

                               v.

City and County of Denver, a Municipal Corporation, Defendant in
Error.

                           No. 19256.

               Supreme Court of Colorado, En Banc.

                         Aug. 15, 1960.

     Rollie R. Rogers, Lew E. McClain, Francis W. Brown, Denver,
for plaintiff in error.

     Donald E. Kelley, James P. McGruder, Denver, for defendant in
error.

     SUTTON, Chief Justice.

     Plaintiff in error was defendant in the trial court, and will
be referred to as she there appeared.  The only question presented
is whether her motion to dismiss a charge of wearing a concealed
weapon in violation of the Municipal Ordinances of the City and
County of Denver should have been granted.  We conclude that it
should.

     The evidence, viewed in the light most favorable to the City,
discloses that on June 12, 1958, the defendant was seen by police
officers on Larimer Street in Denver, Colorado.  When first seen
she was holding a pistol in her hand, pointing it in the direction
of a group of people down the street.  Upon becoming aware of the
approaching officers she proceeded to a parking lot and threw the
weapon into an automobile that was parked there.

     Subsequently, she was arrested, charged with, and convicted in
the Municipal Court of the City and County of Denver of four
violations of Denver Municipal Ordinances.  Upon appeal to the
Superior Court there was a trial de novo to the court, which
granted motions to dismiss all charges except the charge of
violation of Section 846.1-1 of said ordinances, said motions
having been made at the close of the City's case.  The court
refused, however, to dismiss the latter charge, whereupon defendant
elected to stand upon her motion to dismiss.  The court made
findings of fact and found her guilty of "carrying a concealed
weapon."

     The ordinance in question reads as follows:

     "846--REGULATION PERTAINING TO WEAPONS, MISSILES, AND BURGLAR
     TOOLS.

     ".1.  Unlawful to Carry Concealed Weapons:  Forfeiture of
     Concealed Weapons.

     ".1.-1.  It shall be unlawful for any person to wear under his
     clothes, or concealed about his person, or to display in a
     threatening manner or to flourish, any dangerous or deadly
     weapon * * *."

     In holding the defendant guilty the court made the following
findings:

    "* * * I might explain that in view of counsel's Motion to
   Dismiss, the Court feels that the Defendant, although she had
   this weapon in open view at the time that it was first seen,
   attempted to conceal the same after the officer gave chase.  As
   a consequence, the Court feels that it constitutes a concealed
   weapon.  * * *

    "By virtue of the Defendant's attempting to rid herself of this
   weapon, she was attempting to conceal it from herself and also
   conceal it from the police officers, and as a consequence the
   Court finds the Defendant guilty of carrying a concealed weapon.

    "Lets get down to seriousness.  To me there is nothing more
   serious than having a weapon in circumstances where there is an
   emotional strain, and that is what this girl is guilty of."

   Defendant asserts two alleged errors, only one of which we here
consider, for its determination is sufficient to dispose of the
case.  In substance, it is urged that the facts above set forth
cannot, as a matter of law, constitute the defendant "guilty of
carrying a concealed weapon" as found by the court.  We agree that
the trial court misconceived the legal significance of the
terminology "wear under his clothes, or concealed about his person
* * *, any dangerous or deadly weapon."

   The only indication of any concealment to be found in the record
is the testimony of the City's witnesses that the defendant
attempted to dispose of the weapon by throwing it into a parked
automobile.  Such other evidence as was presented is to the effect
that at all times she had the weapon in her possession it was
carried in her hand in plain view of all concerned.

   The gist of the offense charged is not the carrying or wearing
of a deadly weapon, nor the attempt to conceal such a weapon, nor
is it "having a deadly weapon in circumstances where there is
emotional strain."  It is, rather, the wearing of the weapon in
such a manner as to be concealed, either about the person or under
the clothes.  There is here no evidence that the defendant was
guilty of such concealment.  See People v. Beason (1951), 342
Ill.App. 621, 97 N.E.2d 603; Lee v. State (1932), 45 Ga.App. 521,
165 S.E. 317; and Williams v. Commonwealth (Ky.1896) 37 S.W. 680,
for cases in other jurisdictions holding similar evidence
insufficient to support convictions of carrying concealed weapons.

   Nor are we able to accept the City's contention that "even if
the weapon was not concealed the conviction should be affirmed
because the subject ordinance prohibits the carrying of a weapon in
a threatening manner."  The defendant was not so charged so could
not be so convicted.

   The judgment is reversed.