State v. Gainey

160 S.E.2d 685 (1968)

273 N.C. 620

STATE of North Carolina v. Paul Thomas GAINEY, Frederick Ware Ingram, and Charles Huntley Ford.

No. 497.

Supreme Court of North Carolina.

May 1, 1968.

*686 T. W. Bruton, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

James E. Ferguson, II, and W. B. Nivens, Charlotte, for defendants appellants.

HIGGINS, Justice.

G.S. § 14-269 provides: "If anyone, except on his own premises, shall wilfully and intentionally carry concealed about his person any * * * pistol, gun, or other deadly weapon of like kind, he shall be guilty of a misdemeanor and shall be fined or imprisoned at the discretion of the court."

Although Ford was in his own automobile at the time of his arrest, he was on the public highway and not on his own premises within the meaning of the statute. State v. Perry, 120 N.C. 580, 26 S.E. 915; State v. Hewell, 90 N.C. 705. The critical question is whether the evidence was sufficient to warrant the finding that Ford wilfully and intentionally carried the weapon concealed about his person. The purpose of the statute is to reduce the likelihood a concealed weapon may be resorted to in a fit of anger. In case of an altercation, one who has a pistol concealed about his person will be less likely to act with restraint than if he were unarmed. If both parties are unarmed, bloody noses, black eyes, and torn shirts are the principal dangers which grow out of a fight. If, however, one or each party has a concealed weapon, the result of an altercation may be a funeral and a homicide trial, or two funerals.

In this case, Ford was convicted of carrying the rifle concealed about his person. Gainey and Ingram were convicted of aiding and abetting Ford in that offense. To be criminal, the weapon must be concealed, not necessarily on the person of the accused, but in such position as gives him ready access to it. May we say from this evidence that the weapon was concealed about Ford's person?

The evidence indicates one of the officers saw Ingram and perhaps one of the others rearranging the seat after the automobile stopped. The implication is they were concealing the weapon beneath the seat. There is no evidence whatever that Ford knew of or participated in this concealment. The other weapons were out in the open. Why the sawed off rifle was concealed, or who concealed it, or when, does not appear with any degree of certainty. Ford claimed the shotgun, which was unconcealed. Gainey claimed the repeating rifle, which was unconcealed. The sawed off rifle may or may not have been in the *687 open at the time Officer Dean intercepted the party.

The evidence was insufficient to warrant the conviction of Ford for carrying the rifle concealed about his person. He was in the driver's seat. The rifle was under the back seat. Three men were riding on that seat. Justice Merriman, in State v. McManus, 89 N.C. 555, stated our rule: "* * * The language is not `concealed on his person,' but `concealed about his person'; that is, concealed near, in close proximity to him, and within his convenient control and easy reach, so that he could promptly use it, if prompted to do so by any violent motive. * * * It makes no difference how it is concealed, so it is on or near to and within the reach and control of the person charged."

A detailed discussion and citation of authorities from many states dealing with concealment on or about the person may be found in 43 A.L.R.2d, pp. 492 to 524, and in the New York University Law Review, Vol. 26, pp. 210 to 214.

The Attorney General, on the argument, quite frankly admitted that Ford's conviction may not be sustained unless this Court goes beyond any of its previously decided cases. The mere fact of five armed men speeding on the highway at 1:00 in the morning arouses suspicion as to the legitimacy of their plans. But we must not hurry the law to punish conduct that is not criminal. Punishment may be only for unlawful conduct. In determining what that is, we must construe the law strictly in favor of the accused. Under this rule, we hold the evidence was insufficient to warrant the conviction of Ford for carrying the sawed off rifle concealed about his person. Since his conviction was improper, the conviction of Gainey and Ingram for aiding and abetting him must also fail. State v. Spruill, 214 N.C. 123, 198 S.E. 611.

The convictions and judgments of the three appellants are

Reversed.