Opinion
No. 31557.
March 11, 1935.
1. CONSTITUTIONAL LAW.
Ordinance seeking to make all misdemeanors against state offenses against town in whose corporate limits offenses "may have been committed" held not void as to one subsequently arrested on theory that it referred only to past acts, since language of ordinance follows language of statute authorizing municipalities to adopt misdemeanors under state law as offenses against municipalities (Code 1930, section 2549).
2. WEAPONS.
Traveler carrying concealed weapon ten miles from home, and who was unacquainted with people living between home and place to which he was traveling, and who was carrying weapon for purpose of protection, held not guilty of offense of carrying concealed weapon (Code 1930, sections 855, 2549).
APPEAL from circuit court of Scott county.
HON. D.M. ANDERSON, Judge.
Ray Basham was convicted of carrying a concealed weapon in the town of Sebastopol, and he appeals. Reversed and dismissed.
W.T. Weir, of Walnut Grove, for appellant.
We respectfully submit that the ordinance introduced is void on its face.
Barton v. State, 94 Miss. 375, 47 So. 521.
A municipality can neither deny nor abridge any of the rights protected by the constitutional guaranties. It may not pass any ex post facto ordinance.
43 C.J. 226; Etheridge on Constitution, 92.
The town clerk is the proper custodian of the record and the ordinance book, and he is the proper officer to identify it. The mayor is not the custodian of the book nor the proper person to identify it.
Sections 1564, 2545, 2547, Code 1930; Witherspoon v. State, 138 Miss. 310, 103 So. 134.
Where the defendant showed that he was travelling and was not a tramp — and where the defendant's evidence is undisputed that he was making a journey beyond the neighborhood of his acquaintance, and was a stranger to the people along the line of his journey, and that he was not a tramp, and such evidence was not inconsistent with the other evidence in the case, the defendant is entitled to a peremptory instruction to find him not guilty.
McLeod v. State, 105 So. 757, 140 Miss. 897; Haly v. State, 106 Miss. 358, 62 So. 670; 102 Miss. 544; 40 Cyc. 858; Hughes Criminal Law, sec. 1165; McGuirk v. State, 64 So. 209; 1 So. 103.
A.W. Cooper, of Forest, for appellee.
Section 855 of the Code of 1930 provides that where one is charged with a violation of section 853, he may show as a defense; that he was traveling and was not a tramp, or was setting out on a journey and was not a tramp, and section 855 states that when this defense is set up as a justification the burden of proving it shall be on the accused.
The testimony to establish the fact that he was traveling and was not a tramp, came from his sweetheart and father, and in the nature of such a case, their testimony to meet that burden necessarily had to be simply their opinions, and after the jury heard all this evidence and the instructions of the court decided that he did not established his defense as required by section 855 of the Code of 1930.
Appellant did not meet the burden.
McLeod v. State, 140 Miss. 897.
Ray Basham, the appellant, was arrested in the town of Sebastopol, tried and convicted before the mayor of said town, on June 23, 1934, on a charge of carrying a concealed weapon. He appealed to the circuit court, where he was again convicted and sentenced to pay a fine of twenty-five dollars and costs, from which he appeals here.
He first assigns as error that the ordinance of the town of Sebastopol was void as applied to his arrest and conviction because it only refers to past acts and not to future acts. The ordinance under which the appellant was convicted is a general ordinance seeking to make all misdemeanors against the state offenses against the town when committed within its limits, and reads, in part, as follows: "Be it ordained by the mayor and board of aldermen of the town of Sebastopol, Mississippi, that all offenses under the penal laws of the State of Mississippi, amounting to a misdemeanor shall also be offenses against the town of Sebastopol, Mississippi, in whose corporate limits the offenses may have been committed to the same effect as though such offenses were made offenses against the said town by separate ordinances in each case," etc.
It is said that this refers only to past offenses and not to future offenses, and as applied to the appellant was an ex post facto law. The language of the ordinance follows the language of the statute authorizing municipalities to adopt misdemeanors under the state law as offenses against the municipalities when committed within same. The statute (Code 1930, section 2549) uses the words, "may have been committed."
We think, therefore, that this assignment of error is without merit.
It is next insisted that the appellant was entitled to a peremptory instruction finding him not guilty, because the proof was developed that he was a traveler and not a tramp, and that such proof brings the case within section 855, Code of 1930, and the case of McLeod v. State, 140 Miss. 897, 105 So. 757. The proof in regard to the appellant's offense was that he drove to Sebastopol at eleven o'clock at night and went to a filling station where he proceeded to put water in his radiator. The marshal of the town had just arrested two persons found burglarizing, and had the mayor of the town there for the purpose of advising him, when he saw the appellant driving into the filling station. The marshal went out there to see who he was and what he was doing, and when the appellant had put the water in the radiator of his car, he started to get into said car when the marshal observed a pistol sticking out of the appellant's pocket, and asked him what it was, and he stated it was a gun. Thereupon, the marshal took him in charge for carrying a concealed weapon. The appellant called up his employer at Walnut Grove, which was distant about ten miles, and he came over and gave a check for the amount and costs, and he and the appellant went on to Walnut Grove, where the appellant, a young man of about twenty-two years, lived with his father. On learning the facts, his father made bond and the employer stopped payment on the check he had given.
The appellant's proof was that he was a stranger in that community, and had been to Union, about fifteen miles distant, and carried the weapon for protection, and that he was a traveler and not a tramp within the meaning of the statute. It was also shown in the testimony, without dispute, that he was not acquainted with the people living between Walnut Grove and the town of Union. The town of Sebastopol is in Scott county, Walnut Grove in Leake county, and Union in Newton county.
The officer testified that when he went to the scene of the arrest he did not know who the appellant was or where he lived; that he had seen him before, but did not know who he was, and knew nothing of him other than that he had passed through the town. In other words, it was shown in the evidence, without dispute, that the young man was unacquainted with the people living between Walnut Grove and Union, and that he carried the weapon for the purpose of protection.
There is no dispute as to the facts, and we think the case comes within the principles announced in McLeod v. State, supra, and that therefore, the peremptory instruction should have been granted.
What is the extent of a person's community or neighborhood may vary, but where he is traveling beyond its confines the statute permits him to carry a concealed weapon. The judgment of the court below will therefore be reversed, and the cause dismissed.
Reversed and dismissed.