Matthews v. State

148 N.E.2d 334, 237 Ind. 677, 1958 Ind. LEXIS 194

• Court: Indiana Supreme Court
• Decided: March 6, 1958
• Docket: 29,574
• Status: Published

Opinions

Bobbitt, J.

Appellant was charged by affidavit in two counts; tried by jury; and found guilty of assault under Count No. 1, and as charged in Count No. 2. Count No. 1 charged assault and battery with intent to commit murder under Acts 1927, ch. 203, §2, p. 580, being §10-401, Burns’ 1956 Replacement; and Count No. 2 charged the carrying of a pistol without a license therefor under Acts 1935, ch. 63, §§3 and 15, p. 159, being §10-4736 and §10-4747, Burns’ 1956 Replacement. (Uniform Firearms Act.)

The jury fixed appellant’s penalty under Count No. 1, but did not fix the punishment under Count No. 2. This was done by the court.

Four questions are determinative of the issues in this case.

First: Appellant asserts that the first count of the affidavit was incorrectly pleaded and the evidence is not sufficient to sustain the conviction because the affidavit charged an assault with intent to murder Napoleon Davis, while the evidence shows that his assault was directed against one George Shipp, although, in fact, he accidentally shot Davis.

Appellant further contends that, because the affidavit did not allege that he “assaulted Shipp, with the intent to murder him, and inadvertently” shot Davis, there was a variance in the proof which misled him in his defense, and the trial court erred in giving appellee’s Instruction No. 1 as follows:

“When one intends to assault a certain person with a deadly weapon, and by mistake or inadvertence assaults another person with such weapon, in the eyes of the law his intent is transferred from the person to whom it was directed to the person actually assaulted; and a person committing such an act is deemed guilty of assault with a deadly weapon, in like effect as if he had originally intended to attack the person thus assaulted through mistake or inadvertence.”

This question has been decided adversely to appellant in Noelke v. State (1938), 214 Ind. 427, 430-434, 15 N. E. 2d 950, and we see no reason to disturb the ruling in that case. The trial court did not err in giving appellee’s Instruction No. 1, and appellant’s complaint of the variance between the affidavit and the proof is without merit.

Second: The jury found appellant guilty on- the second count of the affidavit, and that he was 38 years of age, but did not fix the penalty. However, appellant, before the jury was discharged, suggested that the court should fix the penalty under Count No. 2 of the affidavit. The prosecuting attorney concurred in this suggestion. The error here, if any, was invited by appellant and he cannot complain of an alleged error which he induced the trial court to commit. The State v. Arnold (1896), 144 Ind. 651, 657, 42 N. E. 1095, 43 N. E. 871; Duncan v. State (1908), 171 Ind. 444, 447, 86 N. E. 641; Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 606, 100 N. E. 675; Switzer v. State (1937), 211 Ind. 690, 701, 8 N. E. 2d 80.

Third: Appellant further asserts that the Legislature has attempted to delegate discretionary duties to the Superintendent of State Police without providing sufficient standards under which such discretion is to be exercised and, therefore, the Uniform Firearms Act violates §1, Art. 4 of the Constitution of Indiana, and the Due Process Clause of the 14th Amendment of the United States Constitution.

Reasonable standards must be imposed where the Legislature delegates discretionary powers to an administrative officer. Ennis v. State Highway Commission (1952), 231 Ind. 311, 326, 108 N. E. 2d 687. However, the policy of the Legislature and the standards to guide the administrative agency may be laid down in very broad and general terms. Such terms get precision from the knowledge and experience of men whose duty it is to administer the statutes, and then such statutes become reasonably certain guides in carrying out the will and intent of the Legislature. Mutual Film Corp. v. Ohio Indus’l. Comm. (1915), 236 U. S. 230, 245, 59 L. Ed. 552, 560, 35 S. Ct. 387; 42 Am. Jur., Public Administrative Law, §45, p. 346.

Courts generally are less strict in requiring specific standards to guide the licensor where the subject-matter of the Act is closely related to the public safety, health, morals or general welfare.¹ 73 C. J. S., Public Administrative Bodies and Procedure, §30, p. 329.

It seems to us that the regulation of the possession of firearms is closely related to the public safety and welfare, and we should be guided in our deliberation here by the rule immediately above stated. Under this rule general standards will be sufficient here, provided there is an opportunity for a court review of possible arbitrary or capricious action by the local police officer or Superintendent of State Police.

This is not an action where appellant is complaining of any arbitrary or capricious action by the local Chief of Police or the Superintendent of State Police in denying him a license to carry a pistol; nor is this an attack on any rules or regulations prepared or promulgated by the licensing officer. The sole question then presented is whether the statute² is invalid because it fails to provide sufficient standards to guide the licensing officer in the administration of the Act.

Chapter 63, Acts 1935, as amended,² provides, in parts here pertinent, that no person shall carry a pistol except in his “place of abode or fixed place of business,” without a license therefor (§3). Certain persons, including police officers and members of the armed forces, are exempt from the Act (§4). The procedure for issuance of the license is set out in §5 and provides that a person desiring a license shall apply to the Chief of Police or the County Sheriff; and, further,

“The officer to whom the application is made shall ascertain concerning the applicant his name, address, length of residence in the community, race, citizenship, age, criminal record, if any, occupation, place of business, character, reputation, experience with firearms and reason for desiring a license. The desire to engage in target practice is a proper reason. The officer to whom the application is made shall forward this information together with his recommendation to the superintendent of state police, who may make whatever further investigation he deems necessary and shall issue to the applicant a qualified or unlimited license to carry a pistol for not more than one [1] year from the date of issue, if it appears that the applicant has a proper reason for carying a pistol and is of good character and reputation and a suitable person to be so licensed.” Acts 1943, ch. 156, §1, p. 466, being §10-4738 (1), Burns’ 1956 Replacement.

The licensing officer is authorized to prescribe the form of all licenses and applications, and the manner in which the information concerning each applicant is to be obtained and furnished to him (§5(2)). An application must be granted or rejected within 30 days after it is filed and “Any person aggrieved by the failure of the officer to whom the application is made to recommend him for any license provided for .by this act or of the state licensing officer to issue such license, or by a revocation of his license, may have the decision reviewed by the circuit court.” (§5 (3)).

Thus it is readily apparent that the Act fixes the general standard of fitness, character, and reputation necessary to require the issuance of a license and provides a review by the Circuit Court to protect the applicant against any arbitrary, capricious or fraudulent action by the licensing officers.

Whether the applicant “has a proper reason for carrying a pistol and is of good character and reputation and a suitable person to be so licensed” are questions of fact; and the Legislature may delegate the function of determining these facts upon which the execution of the legislative policy, as expressed in the Act, is dependent. Douglas v. Noble (1923), 261 U. S. 165, 67 L. Ed. 590, 43 S. Ct. 303; Clayton v. Bennett (1956), 5 Utah 2d 152, 298 P. 2d 531; Whittle v. Nesmith (1951), 255 Ala. 193, 51 So. 2d 6.³

It is our opinion that the Superintendent of State Police, with his special training and experience, and with the facilities which he has at his command for securing information, is capable and qualified to determine whether an applicant for a license to carry a pistol has a “proper reason” therefor, and whether he is a “suitable person” to have a pistol in his possession at will. The Legislature could not determine these facts in each individual case, and unless such ministerial duties are delegated to some competent person, with authority to execute the will of the Legislature upon proper showing of facts, such laws would become a nullity because of a lack of machinery for their enforcement.

When the statute here in question provides that the Superintendent of State Police shall issue to the applicant a license, if it appears that he is of good character and reputation and a suitable person, it requires that such Superintendent must determine whether or not the applicant meets these qualifications and if, in the opinion of the Superintendent the conditions of the statute are met, he has no discretion in the matter but must issue the license.

For the reasons above stated, we find no unlawful delegation of legislative power in the statute here in question and it does not violate the Due Process Clause of the 14th Amendment of the United States Constitution or Art. 4, §1, of the Indiana Constitution.

Fourth: Appellant further asserts that the Firearms Act violates Art. 1, §32 of the Indiana Constitution which provides that “The people shall have a right to bear arms, for the defense of themselves and the State,” because it restricts the right of the people to bear arms for their own defense.

The purpose of the Firearms Act is to achieve a maximum degree of control over criminal and careless uses of certain types of firearms, while at the same time making them available to persons where needed for protection.⁴

The Legislature has the power, in the interest of public safety and welfare, to provide reasonable regulations for the use of firearms which may be readily concealed, such as pistols.⁵ McIntyre v. State (1908), 170 Ind. 163, 83 N. E. 1005; State v. Hart (1945), 66 Idaho 217, 157 P. 2d 72; Hill v. The State of Georgia (1874), 53 Ga. 472; Salina v. Blaksley (1905), 72 Kan. 230, 83 Pac. 619, 115 Am. St. Rep. 196, 3 L. R. A. (N. S.) 168; The State v. Buzzard (1842), 4 Ark. 18; State v. Tully (1939), 198 Wash. 605, 89 P. 2d 517, (Upholding a similar statute under a like constitutional provision) ; United States v. Miller (1939), 307 U. S. 174, 83 L. Ed. 1206, 59 S. Ct. 816.

The provisions of §10-4736, supra, do not restrict nor prohibit appellant or any other person from having a pistol in his home or “fixed place of business” for the defense of himself and the State. Neither does such Act attempt to restrict or prohibit the use of firearms other than pistols, as they are defined in §1 of the Act.

Article 1, §32, supra, does not say that the people shall have a right to bear pistols, or any other specific kind or type of arms.

Since, under the Act here under consideration, people may carry pistols in their homes and fixed places of business, without a license, and other kinds and types of firearms any place, we are unable to see wherein it contravenes any of the provisions of Art. 1, §32 of the Indiana Constitution.

For the reasons above stated, ch. 63, Acts 1935, as amended, does not violate the above provisions of the Indiana Constitution.

Appellant having failed to show reversible error, the judgment of the trial court is affirmed.

Judgment affirmed.

Landis, Achor and Arterburn, JJ., concur.

Emmert, C. J., concurs in part and dissents in part with opinion.

1 . Compare Lee v. Delmont (1949), 228 Minn. 101, 36 N. W. 2d 530 (barbers) and State ex rel. v. Fields et al. (1924), 218 Mo. App. 155, 263 S. W. 853 (pool halls) with Weiner v. Borough of Stratford, County of Camden (1954), 15 N. J. 295, 104 A. 2d 659 (license to conduct a new business) and State v. Ballance (1949), 229 N. C. 764, 51 S. E. 2d 731, 7 A. L. R. 2d 407 (photography) .

2 . This is the Uniform Firearms Act as adopted in Indiana.

3 . For other cases where standards similar to those prescribed in the Uniform Firearms Act have been held sufficient, See: McDonough v. Goodcell (1939), 13 Cal. 2d 741, 91 P. 2d 1035, 123 A. L. R. 1205 (bail bond business); Thompson v. Tobacco Root Co-op. (1948), 121 Mont. 445, 193 P. 2d 811 (grass conservation districts); Falkner v. Memorial Gardens Association (1957), Tex. Civ. App., 298 S. W. 2d 934 (prepaid funeral benefits) ; Pierstorff v. Board of Embalmers (1941), 68 Ohio App. 453, 41 N. E. 2d 889 (appeal dismissed, 138 Ohio St. 626, 37 N. E. 2d 545) (funeral directors); Prata Undertaking Co. v. Bd. of Embalming (1936), 55 R. I. 454, 182 Atl. 808, 104 A. L. R. 389 (funeral director); State ex rel. v. Fields et al. (1924), 218 Mo. App. 155, 263 S. W. 853 (pool halls); Santoro v. Mirshel (1945), 184 Misc. 666, 55 N. Y. S. 2d 328 (affirmed, 269 App. Div. 1046, 59 N. Y. S. 2d 279 (restaurants); Adams v. New Kensington (1947), 357 Pa. 557, 55 A. 2d 392 (juke bokes).

4 . See: 98 University of Pennsylvania Law Review, p. 905, for a comprehensive discussion of state and federal firearms legislation.

5 . Acts 1935, ch. 63, §1, defines a pistol as any firearm with barrel less than 12 inches in length.