State v. McNary

596 P.2d 417, 100 Idaho 244, 1979 Ida. LEXIS 431

• Court: Idaho Supreme Court
• Decided: June 6, 1979
• Docket: 12140
• Status: Published

Opinions

BAKES, Justice.

Defendant appellant Robert Loren McNary was convicted by a jury of carrying a concealed weapon in violation of I.C. § 18-3302 and obstructing a public officer in violation of I.C. § 18-705. He contends on appeal that the trial court erred in admitting a zippered case containing a pistol into evidence and in refusing to dismiss the concealed weapon charge, asserting that there was no evidence of an illegal carrying of a concealed weapon. He further argues that the court erroneously refused to instruct the jury that his carrying of a concealed weapon upon the premises where he lived was not illegal. Finding these assignments of error without merit and the other assignments likewise not a basis for reversal, we affirm McNary’s convictions.

In the early morning hours of October 16, 1974, Officer Jeff Harris, of the Fruitland Police Department, was patrolling on foot in the city of Fruitland when he observed the defendant McNary driving a borrowed vehicle at a high rate of speed. Officer Harris testified that the defendant was observed to skid to a stop at a stop sign, accelerate at a high rate of speed down the wrong side of the street, and turn onto an adjoining street “skid[ding] completely sideways in the intersection.” Because Officer Harris did not have access to his patrol car he was unable to follow McNary. ■

Officer Harris had previously observed McNary’s own car parked in town. Shortly after the foregoing events he received a telephone call from the defendant McNary indicating that his car had been stolen. Officer Harris advised McNary that he didn’t think his car had been stolen because he had just observed it parked downtown. McNary told Officer Harris over the phone that he wanted to be sure that it hadn’t been stolen, so Officer Harris agreed to take McNary downtown to show him his car. When Officer Harris arrived at McNary’s residence to pick him up, McNary came out of the house carrying a .22 caliber pistol and proceeded to get into the passenger side of Officer Harris’s vehicle. McNary appeared to be intoxicated according to Officer Harris, and stated that he felt he needed his pistol because the “mafia had stolen his vehicle.” While Officer Harris was driving the defendant to the place where the defendant’s car was parked he stated several times to McNary that he seemed intoxicated and should not attempt to drive.

“I told him I wanted to take him back home and he could come back and get his car in the morning. He just refused and said he was going to drive it home. . He got out of my patrol car and took the .22 with him, walked over to his car and removed the keys from his pocket and unlocked the door and got in it and started it up, put it in gear and backed it away from the parking place and started driving down the street.”

Officer Harris followed McNary and attempted to stop him by turning on the overhead flashing lights on his patrol car, but to no avail. McNary drove to his residence, parked his car in the driveway and stepped out of the vehicle. Officer Harris got out of his car and approached McNary who was getting out of his car. Officer Harris advised him that he was under arrest for driving while intoxicated, and as he did, the defendant “bent back over and into his vehicle and reached in under the front seat and pulled out a case,” which Officer Harris later discovered contained another gun, a 9 mm. pistol. The defendant held the case containing the gun in front of him and “turned away from me and started walking off.” Having advised the defendant that he was under arrest, Officer Harris attempted to detain him, and when he did the defendant jerked away and started swinging at him. A struggle ensued for several minutes until Officer Harris was able to subdue McNary with the aid of mace and then handcuffed him.

McNary was charged with driving while under the influence of intoxicating beverages or drugs in violation of I.C. § 49-1102, carrying a concealed weapon within city limits in violation of I.C. § 18-3302, and obstructing an officer in violation of I.C. § 18-705. A jury convicted him of the latter two offenses. He has appealed, making numerous assignments of error, of which only the following require extended discussion.

The defendant first assigns as error the overruling of hearsay objections to testimony given by police officer Harris. Officer Harris related on the witness stand what he told defendant when he picked him up at his house and drove him to the Amco station where the officer believed defendant’s car was parked. Defendant objected to the following testimony given by Harris:

“A. I then told him that

“MR. POSEY: I object as to what he told him as being hearsay.

“THE COURT: Overruled. Go ahead.

“A. I advised him that I did not think he needed the gun in his condition. He laid the gun down on the car and I picked it up and unloaded it and laid it back down. We then proceeded down to the Amco service station downtown where I had seen his car parked earlier.

“Q. What happened when you arrived at the Amco service station.

“A. I asked him if that was his car and he said, ‘Yes, it was.’ He then stated he was going to drive home.

“Q. Did you say you were going to give him permission to drive that car home?

“MR. POSEY: I object to that, as to what the police officer said. It can only be hearsay, self-serving statement.

“THE COURT: Overruled.

“A. I had told him several times on the telephone before we went down to the station and several times I told him that I did not want him to drive a motor vehicle because I felt he was intoxicated.”

In a closely related assignment of error, defendant contends that the trial court erred in refusing to grant defendant’s proposed instruction number 4 which would have instructed the jury that they were not to consider the above statements of Officer Harris for the truth of the matter contained therein. The defendant would have had the jury instructed that the conversation was admitted merely “to allow you to hear a continuous flow of evidence.” Under most circumstances such a cautionary instruction would be necessary in order to insure that hearsay evidence admitted for a limited purpose would not be considered by the jury as proof of the matters contained therein.

In our view, neither of these assignments of error point to matters which, if error, would have constituted reversible error. The out-of-court statements which the witness Harris related and to which defendant in this case has objected were not such, we believe, that the jury would either have believed that they were evidence from which the defendant could be convicted, or were such as would carry any substantial weight in the minds of the jurors. This conclusion is supported by the fact that the jury acquitted defendant of the charge of driving his vehicle while intoxicated. Clearly, no prejudice can be said to have flowed from Officer Harris repeating his out-of-court statements relating to his belief that the defendant was intoxicated.

The other statement in question concerned the .22 caliber pistol. However, in view of the amount of proper evidence indicating that defendant did carry a different weapon, a concealed 9 mm. automatic pistol, admission of Harris’s statement referring to the .22 caliber pistol, if error at all, was harmless. “Non-prejudicial error does not constitute ground for reversal.” State v. Darrah, 92 Idaho 25, 27, 435 P.2d 914, 916 (1968); I.C. § 19-3702.

McNary contends that the trial court erred in admitting into evidence over his objection State’s Exhibit 2, being the zippered case and the 9 mm. pistol which was in it. We disagree.

It is illegal under I.C. § 18-3302¹ for one without a permit and not within the exempted class of persons to “carry concealed upon or about his person, any . pistol, revolver, [or] gun . . . within the limits or confines of any city.” (Emphasis supplied.) One carries a weapon “upon or about his person” not only when he physically is carrying it in his clothing or in a handbag of some sort, but also when he goes about with the weapon in such close proximity to himself that it is readily accessible for prompt use. See, e. g., Wilson v. United States, 91 U.S.App.D.C. 135, 198 F.2d 299 (1952); Brown v. United States, 58 App.D.C. 311, 30 F.2d 474 (1929); Williams v. Commonwealth, 261 S.W.2d 807 (Ky.1953); Shipley v. State, 243 Md. 262, 220 A.2d 585 (1966); State v. Conely, 280 Mo. 21, 217 S.W. 29 (1919); State v. McManus, 89 N.C. 555 (1883); Schraeder v. State, 28 Ohio App. 248, 162 N.E. 647 (1928); Spears v. State, 112 Tex.Cr.R. 506, 17 S.W.2d 809 (1929); Annot., 43 A.L.R.2d 492, 502-09 (1955). The general test of concealment is whether a weapon is so carried as not to be discernible by ordinary observation. See, e. g., People v. Zazzetti, 6 Ill.App.3d 858, 286 N.E.2d 745 (1972); Shipley v. State, 243 Md. 262, 220 A.2d 585 (1966); State v. Bordeaux, 337 S.W.2d 47 (Mo.1960); State v. Pettit, 20 Ohio App.2d 170, 252 N.E.2d 325 (1969); Annot., 43 A.L.R.2d 492, 512-14 (1955).

At the time that the state offered the 9 mm. pistol into evidence there is no question but that the state had laid an adequate foundation to show that the 9 mm. pistol, located inside the zippered case, had been removed by the defendant from underneath the seat of his car and carried by him as he attempted to avoid being arrested by Officer Harris. It was not necessary that every element of the crime be established prior to admission of Exhibit 2 into evidence.

“The test of relevancy, which is to be applied by the trial judge in determining whether a particular item or group of items of evidence is to be admitted is a different and less stringent one than the standard used at a later stage in deciding whether all the evidence of the party on an issue is sufficient to permit the issue to go to the jury. A brick is not a wall.” McCormick’s Handbook of the Law of Evidence, § 185, p. 436 (E. Cleary, 2d ed. 1972).

The state having established that the exhibit offered was the same encased pistol which the defendant had removed from his car and was carrying when he was arrested by Officer Harris, the trial court did not err in admitting Exhibit 2, zippered case and the pistol, into evidence.

Appellant’s objection to Exhibit 2, i. e., that there was no evidence of an illegal or unlawful carrying of State’s Exhibit 2 is appropriately addressed in conjunction with appellant’s assignment of error that the trial court erred in denying defendant’s motion to dismiss the charge of carrying a concealed weapon at the close of the state’s evidence. This alleged error is closely related to another assignment of error asserted by appellant in which he alleges that the trial court erred in refusing to give the following instruction:

“DEFENDANT’S PROPOSED INSTRUCTION NO. 1

“You are instructed that it is not a crime for a person to carry a pistol, revolver, or gun, concealed or otherwise, from his own automobile parked on the premises where he is living to the house in which he is living even though his premises is located within the city limits.”

Instead, the trial court gave the following:

“INSTRUCTION NO. 16

“The carrying of a concealed weapon as a mere incident of its transportation from one place to another is not an offense if the purpose of transporting the same is for an innocent reason and does not go beyond the purpose of transporting the same.”

The essence of appellant’s argument in support of his motion to dismiss and his proposed Instruction Number 1 was that I.C. § 18-3302, prohibiting the carrying of a concealed weapon, does not apply to a person when he is on his own premises. We do not see any justification or authorization for reading into the statute such an all-encompassing exception. Instruction Number 16,² which was given by the court, was adequate to present to the jury the defendant’s argument that his transportation from his automobile to the house in which he was living was not a criminal offense. In fact, Instruction Number 16 was probably more favorable to the defendant than the instruction which he requested. Therefore, we conclude that the trial court did not err in refusing to give McNary’s proposed instruction number 1 as appellant has alleged. Likewise, we conclude that from the manner in which Officer Harris testified that the appellant removed the encased gun from beneath the seat of his car and carried it toward his house there was sufficient circumstantial evidence to warrant the trial court’s denial of the appellant’s motion to dismiss at the close of the state’s ease.

McNary also contends on appeal that the trial court erred by refusing two other proposed instructions, by submitting questions of law to the jury, and by admitting certain testimony over objection. We have reviewed the record and find, in each case, either that the assignment of error is without merit or that any error committed was clearly harmless and therefore not a basis for reversal. Accordingly, the judgment or order of commitment entered below is affirmed.

SHEPARD, C. J., concurs. DONALDSON, J., concurs in the result.

1 . “18-3302. CONCEALED AND DANGEROUS WEAPONS — POSSESSION AND EXHIBITION-SALE TO MINORS. — If any person, excepting officials of a county, officials of the state of Idaho, officials of the United States, peace officers, guards of any jail, or any officer of any express company on duty, shall carry concealed upon or about his person, any dirk, dirk knife, bowie knife, dagger, sling shot, pistol, revolver, gun or any other deadly or dangerous weapon within the limits or confines of any city, town or village, or in any public assembly, or in any mining, lumbering, logging, railroad or other construction camp, public conveyances or on public highways within the state of Idaho, or shall, in the presence of one (1) or more persons, exhibit any deadly or dangerous weapon in a rude, angry or threatening manner, or shall have or carry such weapons upon or about his person when intoxicated or under the influence of intoxicating drinks, or shall, directly or indirectly, sell or deliver, loan or barter to any minor under the age of sixteen (16) years any such weapon without the consent of the parent or guardian of such minor, he shall, upon conviction, be punished by a fine of not less than $25.00 nor more than $200.00, and by imprisonment in the county jail for a period of not less than twenty (20) days nor more than ninety (90) days: provided, however, that any person shall be allowed to carry any of the above weapons in the places mentioned above on securing a permit from the sheriff of the county after satisfying the sheriff of the necessity therefor.”

2 . Instruction No. 16, which was taken substantially from defendant’s Proposed Instruction No. 2, was given over the objection of the state. It was not objected to at trial by the defendant, nor is the giving of it assigned as error on appeal. By affirming the judgment of the trial court we do not implicitly approve Instruction No. 16.