Cite as Pueblo v. Sanders, 151 Colo. 216 (1962)

      Pueblo, a Municipal Corporation, Plaintiff in Error,

                               v.

              Floyd E. Sanders, Defendant in Error.

                           No. 20244.

               Supreme Court of Colorado, En Banc.

                         Dec. 17, 1962.

     Gordon D. Hinds, John R. Naylor, II, Pueblo, for plaintiff in
error.

     No appearance for defendant in error.

     McWILLIAMS, Justice.

     Sanders was charged and convicted in the municipal court of
Pueblo with violating the following municipal ordinance:

     "It shall be unlawful for any person, within the limits of the
     city, to carry concealed upon his person any pistol, bowie
     knife, dagger or other deadly weapon.  This section shall not
     be construed to apply to any sheriff, constable, city
     marshall, policeman, or other officer authorized by law or
     ordinance to make arrests."

     Sanders perfected an appeal to the county court of Pueblo
County, where upon trial de novo a jury returned a verdict of not
guilty.  Over objections interposed by Pueblo the following
instructions, inter alia, were read to the jury:

     "Instruction No. 7.  You are further instructed that the
     statutes of the State of Colorado provide as follows:

     "What Constitutes a Crime--A crime or misdemeanor consists in
     a violation of a public law in the commission of which there
     shall be an union or joint operation of act, intention or
     criminal negligence.

     "Instruction No. 8.  The Court instructs the Jury that intent
     is a necessary part of every crime, but you are further
     instructed that intent may be inferred from all the facts and
     circumstances shown in evidence and need not be proved by
     direct evidence.

     "Instruction No. 9.  If you find that the defendant was
     carrying the weapon as an article of merchandise, without any
     intention to use it as a weapon, he is not guilty."

     By writ of error Pueblo seeks disapproval of the giving of
these instructions.  In its brief Pueblo states that "we will treat
a prosecution for an ordinance violation in all respects the same
as though it were a prosecution for a violation of a criminal
statute".  There is no appearance for Sanders in this Court.

     The matter being in this posture, we now hold that
instructions numbered seven and eight are not subject to challenge,
though the instruction numbered nine is disapproved.

     See 43 A.L.R. 2nd, pp. 518 and 519, where it is said:

      "The offense of carrying a concealed weapon forms no
     exception to the general rule that to constitute a crime there
     must be a criminal intent * * *.  In trials for the offense of
     carrying a concealed weapon, it should be borne in mind that
     the guilty intent is the intent to carry the weapon concealed,
     and does not depend upon the intent to use it."  (emphasis
     supplied)

     Also, in 56 Am.Jur. pp. 998 and 999, appears the following:

     "In other jurisdictions the courts hold that the intent of one
     accused of carrying a concealed weapon is immaterial, and that
     if he has a weapon concealed on his person contrary to the
     statute he is guilty of the crime denounced thereby,
     regardless of the purpose for which he carried the weapon.  In
     support of this rule it has been held that the guilty intent
     is the intent to carry the weapon concealed, and does not
     depend on the intent to use it, and that the object of the
     statute is not to forbid the carrying of a deadly weapon for
     use, but to prevent the opportunity and temptation to use it
     arising from its concealment."  (emphasis supplied)

     Finally, in McCray v. Denver, 144 Colo. 1, 354 P.2d 585, we
declared:

     "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."  (emphasis supplied)

     Judgment disapproved.

     HALL, J., dissents.