Cite as State v. Hart, 66 Idaho 217 (1945)

                         STATE v. HART.

                            No. 7187.

                   Supreme Court of Idaho.   

                         March 17, 1945.

     Appeal from District Court, Third Judicial District, Ada
County; Charles E. Winstead, Judge.

     William K. Hart was convicted of carrying a concealed weapon,
and he appeals.

     Judgment modified, and as so modified, affirmed.

     Harry S. Kessler, of Boise, for appellant.

     Frank Langley, Atty. Gen., and Fred M. Taylor, City Atty. for
Boise, of Boise, for respondent.

     SUTTON, District Judge.

     The appellant, hereinafter referred to as the defendant, was
arrested at about the hour of 12:30 a. m. on December 4, 1943, by
two police officers of the City of Boise and taken to the city jail
where he was locked up until about the hour of 10 o'clock that
morning when he was taken into the Police Court where in the
meantime a complaint had been filed charging him with the crime of
carrying concealed weapons contrary to the ordinances of the City
of Boise; whereupon he was released on bail for appearance and
trial in said court on the 7th day of December, 1943. On December
7th an amended complaint having been filed charging the defendant
with the crime of carrying a single concealed weapon, to-wit: A 25
cal. Colts automatic pistol, he was tried and convicted of the
offense charged in said amended complaint. From this conviction and
the judgment thereon he appealed to the District Court of the Third
Judicial District where he was again tried and convicted, and from
that conviction and the judgment entered thereon, he has appealed
to this court.

     The defendant does not deny his guilt-that is, he does not
deny carrying the concealed weapon-but he does make several
contentions in connection therewith which, if sustained, entitle
him to a reversal of the judgment appealed from, the first of these
contentions being that the police court did not have jurisdiction
to convict him or enter the judgment upon such conviction. This
contention is evidently based upon the dual proposition that the
Ordinance under which defendant was sought to be charged is
unconstitutional, and, further, that his arrest was unlawful in
that he was arrested without a warrant in the nighttime for an
alleged misdemeanor not committed in the presence of the arresting
officer.

     Section 11, Article I of the Constitution of Idaho in effect
guarantees the people of the state the right to bear arms for their
security and defense; but it also provides the Legislature shall
regulate the exercise of such right.  This court, in the case of In
re Brickey, 8 Idaho 597, 70 P. 609, 101 Am.St.Rep. 215, 1 Ann.Cas.
55, in discussing this constitutional provision declared that under
it the Legislature has no power to prohibit a citizen from bearing
arms, whether within or without the corporate limits of cities,
towns and villages. It then said "The legislature may, as expressly
provided in our state constitution, regulate the exercise of this
right, but may not prohibit it. A statute prohibiting the carrying
of concealed deadly weapons would be a proper exercise of the
police power of the state." In the more recent case of State v.
Woodward, 58 Idaho 385, 74 P.2d 92, 95, 114 A.L.R. 627, the court
speaking through Mr. Justice Ailshie, after quoting the Brickey
case, said: "The Legislature only has the power to 'regulate the
exercise of this right'; that is, among other things, it may
prohibit carrying concealed weapons, or prescribe the kind or
character of arms that may or may not be kept, carried, or used,
and various other things of a regulatory character." In the
exercise of that right the Legislature has prohibited the carrying
concealed certain specified weapons "or any other deadly or
dangerous weapon within the limits or confines of any city, town or
village." (17-3102, I.C.A.) Section 2, Article XII, of the
Constitution of Idaho provides: "Any county or incorporated city or
town may make and enforce, within its limits, all such local
police, sanitary and other regulations as are not in conflict with
its charter or with the general laws." Under such constitutional
and statutory provisions it s generally held to be a reasonable
exercise of the police power of a municipality to prohibit the
carrying of concealed dangerous or deadly weapons. 68 C.J. 9; Ex
parte Cheney, 90 Cal. 617, 27 P. 436. Therefore the ordinance of
the city of Boise under which the defendant was prosecuted is not
unconstitutional in so far as it prohibits the carrying of
concealed dangerous or deadly weapons. And the Police Court had
jurisdiction of the offense of which the defendant was charged. And
since the record discloses that at the time he appeared for trial
and was tried, a formal written complaint charging him with the
offense had been filed and a warrant for his arrest issued thereon,
and that defendant had been arrested and released upon bail, that
court also had jurisdiction of the person of the defendant. Thus
the objection of the jurisdiction of the Police Court is without
merit.

     Defendant's other four specifications of error we believe can
be consolidated into one general proposition: that is, that
defendant's arrest was unlawful and the seizure of his gun and
blackjack, sap or billy, was likewise unlawful, and that both the
Police Court and the District Court erred in refusing to suppress
that evidence and return it to him. In disposing of this
consolidated question, it is necessary to examine at some length
the facts and circumstances attending the defendant's arrest.

     It appears the police officers who arrested the defendant were
directed by radio from Police Headquarters to go to the Gremlin's
Roost, a so-called club in the Boise Hotel, entrance to which is
from the hotel lobby, to investigate a charge that some one was
swinging a billy. This they did, and on arrival encountered in the
hotel lobby a number of U. S. Army officers including one Military
Police Officer, two uniformed city policemen and several civilians
from whom they inquired what was going on and were informed by the
three Army Officers that a man in the Gremlin's Roost had
threatened them with a blackjack.  Shortly thereafter the door to
the club opened and one of the Army Officers said, "That's the man
there."   Whereupon City Detective Flood, who was acquainted with
the defendant, recognized him and said, "Just a minute, Bill. We
have had a complaint against you for threatening these men with a
blackjack.  Have you got it on you?" to which the defendant
answered, "Yes, in my left hip pocket."  Whereupon Officer Flood
said, "We will have to arrest you," and, according to the State's
evidence, at this juncture the defendant raised his arms at right
angles to his body so that Officer Flood might obtain the
blackjack, billy or sap, as it has been variously described, and as
the defendant's coat swung open it exposed a 25 cal. Colts
automatic pistol in his right vest pocket which, together with the
blackjack, was taken from the defendant by Officer Flood and the
defendant was taken to the city jail and confined as herein before
stated. At this point it should be noted there is some variation in
the recital as to just what was said and when it was said between
the two officers and the defendant near the door of the club, both
as between the respective witnesses and as between the statements
of each witness on direct and cross-examination; and the foregoing
quotations disclose only one of those versions, being the testimony
of Officer Flood on cross-examination.

     It is admitted by the State that at the time of the arrest the
officer had no warrant, no complaint had been filed, and that the
arrest was made in the nighttime.  The State, at least by failure
to deny, in effect admits that in the mid-afternoon of the day
previous the defendant had received an anonymous telephone call
where in he was told "to keep my nose out of the slot machine
business or my body would be found out in the brush"; that upon
receipt of this message the defendant called the Chief of Police
and the Sheriffs office in an endeavor to obtain a permit to carry
a gun for his protection; that he was informed by the Chief of
Police he had no such authority, and was informed by the Sheriffs
Chief Deputy that only the Sheriff could grant him such a permit
(Sec 17-3102, I.C.A.) and he was absent from the city and would be
for several hours. It is suggested that under these circumstances
(the defendant carrying a gun for his own protection) his action
was not criminal because it fails to satisfy the requirement that
there shall be a union of act and intent. This contention appears
to be contrary to the authorities. 68 C.J. 17, Sec. 13; Shepherd v.
State, 35 Okl.Cr. 405, 192 P. 235.

     Section 19-603, I.C.A., sets forth clearly and fully the times
and circumstances under which any peace officer may make an arrest,
as follows:
     "A peace officer may make an arrest in obedience to a warrant
delivered to him, or may, without a warrant, arrest a person:
     "1. For a public offense committed or attempted in his
presence.
     "2. When a person arrested has committed a felony, although
not in his presence.
     "3. When a felony has in fact been committed and he has
reasonable cause for believing the person arrested to have
committed it.
     "4. On a charge made, upon a reasonable cause, of the
commission of a felony by the party arrested.
     "5. At night, when there is reasonable cause to believe that
he has committed a felony."

     From which it would appear that in the case of misdemeanors,
an arrest without a warrant can only be made when the offense is
committed or attempted in the officer's presence.

     While the Attorney General in his brief suggests that if the
trial judge had not excluded the statement by the officers of what
they had been told occurred in the club, it might appear the arrest
was lawfully made under sub-division 3 of the above statutory
provision, just what that statement would have disclosed we, of
course, do not know.  However, it seems unlikely, if not
impossible, that it would have brought the arrest within that
provision. State v. Roby, 43 Idaho 721, 251 P. 210. It follows that
unless it can be said the offense of carrying concealed dangerous
or deadly weapons was committed in the presence of the arresting
officers, the arrest was unlawful and the seizure of the gun and
blackjack unauthorized, and they should he suppressed and returned
to the defendant provided he made timely motion for such relief.
State v. Conner, 59 Idaho 695, 89 P.2d 197; State v. Arregui, 44
Idaho 43, 254 P. 785, 52 A.L.R. 463.

     There seems no good reason why the language of subdivision 1
of Sec. 19-603, I.C.A., should be given such an interpretation as
will hinder peace officers in their conscientious and diligent
efforts to enforce the law and keep the peace. And, notwithstanding
the existence of some authorities to the contrary, it seems to us
that an individual who is in fact violating the law in the
immediate presence of an officer and freely and voluntarily admits
the facts constituting such violation, is committing an offense in
the officer's presence within the meaning of said statutory
provision and may be lawfully arrested without a warrant. Searches
and seizures made incidental to a lawful arrest are not prohibited
as being unreasonable, and the evidence seized is not thereby
rendered inadmissible. State v. Conner, supra. It may be argued
that defendant only admitted the possession of the blackjack, billy
or sap, and that it was not such a weapon as is covered by the
provisions of the ordinance. It is true it is not one of the
weapons therein specifically mentioned; but, in addition to those,
all other dangerous and deadly weapons are included. The defendant
urges that this particular instrument was neither dangerous nor
deadly. At the same time he urges that solely by reason of his
possession and exhibition of this instrument he was able to avoid
and prevent a pre-arranged and deliberated assault upon him by four
U. S. Army officers, which would indicate that those gentlemen, who
are not entire strangers to dangerous weapons, did not regard this
blackjack or billy as lightly as does the defendant. It cannot be
denied that such a weapon may be and is dangerous and even deadly,
depending upon the manner in which it is used.

     The arrest being legal, the seizure was not unwarranted and
the motion to suppress was properly denied.

     The court below did not err in refusing to suppress the
evidence and the fine should be reduced from $100 to $25. There
being no reversible error in the record, the judgment as thus
modified is affirmed.

     BUDGE and GIVENS, JJ., concur. 

     AILSHIE, Chief Justice (dissenting).

     I dissent, for the following reasons: 

     (1) The ordinance of the City of Boise, reading as follows:
"Every person not being a sheriff, deputy sheriff, constable or
other police officer, who shall carry or wear within the corporate
limits, any bowie knife, pistol or sword cane, sling shot, metallic
knuckles, or other dangerous or deadly weapons, concealed, unless
such persons be traveling or setting out on a journey, shall be
deemed guilty of a misdemeanor. Such persons and no others shall be
deemed travelers, within the meaning of this section, as may be
actually engaged in making journey at the time." (Boise City Code,
36, sec. 4-1202, p. 148) is in excess of the authority of the city
of Boise and violates the constitution, Art. 1, sec. 11, and also
runs counter to the provisions of sec. 17-3102, I.C.A.

     (2) The record is complete and uncontradicted, to the effect
that Hart was not deliberately or purposely violating any
prohibition of the city charter or the state law, is undisputed and
in fact conceded, that in good faith he attempted to procure a
permit from the sheriff, as provided by statute (sec. 17-3102,
I.C.A.); and that he did everything the law required him to do,
looking to the securing of such permit.  It stands undisputed that
his life had been threatened by some one presumably interested in
slot-machine operation in Boise City.

     The right to defend one's person is not dependent upon a
permit from any one else but the one being attacked or threatened
to be attacked. It would be utter folly to talk about requiring a
man to get a permit to carry a gun concealed to defend himself,
when he is suddenly attacked by a ruffian with threats to take his
life. What he needs is the right to act then and, unless he has a
gun or other weapon with which offer equal persuasive peril, his
right of self-defense would vanish and so would he. 

     (3) The record in this case is bristling with circumstances
and evidence which convince me that the charge against defendant
was pre-planned by some one or more of the persons who were in the
"Gremlin's Roost" on the occasion when it is charged he (defendant)
threatened an army officer with a black jack. After making the
charge, that he had threatened an army officer with a black jack,
the complaint was finally made against him for another offense,
namely, carrying a concealed weapon. It is admitted that the
discovery of the possession of the concealed weapon was made only
after the arrest had been made on the charge of threatening to use
a black jack. It was done without authority and without consent of
the party searched. Moreover, it is very significant, that upon the
trial of this case in the district court no one of the army
officers, supposed to have been threatened, was produced as a
witness, although their headquarters (Gowen Field) is only a short
distance beyond the Boise City limits.

     After a careful examination of this entire record, I am
convinced that the defendant has not had the fair and impartial
trial which is guaranteed by the constitution.

     HOLDEN, J., authorizes me to say that he concurs in this
dissent.