McMillen v. United States

407 A.2d 603, 1979 D.C. App. LEXIS 482

• Court: District of Columbia Court of Appeals
• Decided: October 4, 1979
• Docket: 13701
• Status: Published

Opinions

KELLY, Associate Judge:

Appellant was convicted of carrying a pistol without a license. D.C.Code 1973, § 22-3204. He questions on appeal the propriety of a certain jury instruction. We affirm.

At trial, appellant testified that he was a resident of Hampton, Virginia, and that he had lawfully purchased the gun there. After a short visit to Washington, he was on his way back to Hampton when he was stopped for running a red light. At that time, he told the arresting officer that he had a gun. His theory at trial was that since he did not know that he must be licensed in the District in order to carry a gun there, he could not have had the intent to carry a gun without a license.

The trial court, however, declined to instruct the jury in a manner consistent with appellant’s theory of the case. It told the jury:

The essential elements of carrying a pistol without a license, each of which the Government must prove beyond a reasonable doubt, are, first, that the defendant carried openly or concealed, on or about his person, a pistol. Secondly, that the pistol was operable, that is that it functioned as a pistol. Third, that the defendant was not licensed to carry the pistol by the Chief of Police of the District of Columbia, and fourth, that he had the intent to do the act which constitutes carrying of a pistol.

In so doing, the court intentionally omitted the last three words of the standard instruction, namely, “without a license,” but otherwise gave it without significant alteration. In short, the trial court refused to instruct the jury that, in order to convict, it must find that appellant not only intended to carry the gun, but moreover, intended to carry it without a license. We agree with the trial court that the last three words of the standard instruction are potentially confusing surplusage, and affirm.

The instruction requested by appellant is the totality of the standard red book instruction. See Criminal Jury Instructions for the District of Columbia, No. 4.81 (3d ed. 1978). We recently restated the elements of the crime of carrying a weapon without a license, as outlined in the red book instruction, in dictum in Jackson v. United States, D.C.App., 395 A.2d 99 (1978): “This offense has three essential elements: (1) carrying an operable pistol, (2) without a license, (3) with the intent to do those two acts.” Id. at 103 n. 3. Although several cases were cited in support of that proposition, analysis of those cases indicates that the elemental description of the crime was based almost exclusively on the red book instruction. See Anderson v. United States, D.C.App., 326 A.2d 807 (1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1405, 43 L.Ed.2d 659 (1975) (discussion of operability; no discussion of intent); Mitchell v. United States, D.C.App., 302 A.2d 216 (1973) (no requirement of showing intent to use weapon for a criminal purpose, must prove intent to do the proscribed act); Brown v. United States, D.C.Mun.App., 66 A.2d 491 (1949) (elements of the crime included only numbers (1) and (2) above); Cooke v. United States, 107 U.S.App.D.C. 223, 275 F.2d 887 (1960) (no plain error in court’s failure to instruct on intent to carry an unlicensed gun where defendant testified that he intentionally carried the gun).

In Jackson, we did not cite or discuss Brown v. United States, D.C.App., 379 A.2d 708 (1977), a case on all fours with the present case. In Brown, the appellant brought a gun into this jurisdiction without knowing that licensure was required to possess a gun here. Although the case was decided on procedural grounds, we noted, again as dictum, that “the proscribed act is that of generally intending to carry a pistol coupled with the fact that such pistol is carried unlicensed in the District of Columbia. . . . ” Id. at 710 n. 3.

We are, of course, bound by neither the Brown dictum nor the Jackson dictum. We are, however, persuaded to follow the statement in Brown.

Carrying a pistol without a license is a crime unknown to the common law, and therefore the common law criminal intent element does not apply. See Logan v. United States, D.C.App., 402 A.2d 822, 825 (1979); Mitchell v. United States, supra at 217. The statute does have limited exceptions. See, e. g., id.; Cooke v. United States, supra 107 U.S.App.D.C. at 224, 275 F.2d at 888. The District of Columbia has a great interest in protecting its citizenry from the dangers inherent in widespread ownership of weapons, see McIntosh v. Washington, D.C.App., 395 A.2d 744, 755 (1978); Cooke v. United States, supra 107 U.S.App.D.C. at 225, 275 F.2d at 889, and licensure is a legitimate means of attaining that goal. Appellant cannot effectively rely upon a contention that he was unaware of the law. See McIntosh v. Washington, supra at 756.

Finding that the trial court’s instruction to the jury was not in error, appellant’s judgment of conviction is

Affirmed.