State v. Williams

352 N.W.2d 576, 218 Neb. 57, 1984 Neb. LEXIS 1168
Nebraska Supreme Court·Decided July 20, 1984·No. 83-860·Published·Cited by 11 cases

Opinions

Grant, J.

Defendant, Timothy R. Williams, was charged with receiving stolen property (a 1983 Lincoln Continental automobile) and with carrying a weapon “concealed on or about his person.” After jury trial Williams was acquitted of the receiving stolen property charge and convicted of the charge of carrying a concealed weapon. He appeals his conviction, alleging that the court failed to properly instruct the jury and that his sentence of 1 to 2 years in the penal complex was excessive. For the reasons hereinafter stated we reverse and remand for a new trial.

The evidence shows that on July 31,1983, at approximately 3 a.m., Williams and his codefendant, Cedric Johnson, were arrested in Omaha, Nebraska, while in a 1983 Lincoln Continental automobile of a value of approximately $20,000. This car had been reported stolen from a Lincoln, Nebraska, new car dealer on July 25,1983. After a report of gasoline stolen from a filling station in Carter Lake, Iowa, by two men in a 1983 Lincoln Continental had been broadcast over the police radio, the car was seen, followed, and ultimately stopped at 24th and Bristol Streets in Omaha. Williams was driving the car, and Johnson was the passenger. The police searched the car for contraband, and discovered a pellet gun, which looked like a .357-magnum firearm, in the glove compartment and an 81/2-inch-long “serrated steak knife,” with a blade 43A inches long, beneath the driver’s seat. This knife was eleven-sixteenths of an inch wide at its widest point, tapering to a point, and had a wooden handle. It was, in short, a table steak knife as used in dining.

Johnson and Williams were tried together. Johnson did not testify, but Williams did. Williams testified he was 19 years old [59]*59and had known Johnson for some years; that on the evening of July 30,1983, Williams had walked to his brother’s house; that at about 10 p.m. Johnson drove up to the house in the new Lincoln Continental; and that Johnson told Williams the car belonged to a friend and asked Williams if he wanted to go riding. Williams further testified that he got into the car on the passenger’s side; that at the time he had the pellet gun in his hand that he had earlier taken away from his young nephew who had been playing with it; that the pellet gun was owned by Williams’ brother; and that he placed the pellet gun in the glove compartment.

Williams further testified that later in the evening he took over driving the car because Johnson was not driving well and Williams was a more experienced driver. Williams testified that he had no knowledge of the knife underneath the seat and that he had never seen it before.

With regard to defendant’s allegation that the jury was improperly instructed, he takes the position that the jury should have been specifically instructed that concealment of a weapon may be. innocent as opposed to culpable. The State responds that, in effect, the jury was so instructed; that, in any event, the knife in question was a deadly weapon as specifically enumerated in Neb. Rev. Stat. § 28-1202(1) (Reissue 1979); that the use or intended use of such a weapon is immaterial; and that, therefore, there could not be any innocent concealment. Section 28-1202(1) provides:

Except as provided in subsection (2) of this section, any person who carries a weapon or weapons concealed on or about his person such as a revolver, pistol, bowie knife, dirk or knife with a dirk blade attachment, brass or iron knuckles, or any other deadly weapon, commits the offense of carrying concealed weapons.

This court discussed the per se deadly weapon question in State v. Valencia, 205 Neb. 719, 290 N.W.2d 181 (1980), where we held that the Legislature, by enacting § 28-1202(1), had designated certain enumerated weapons as deadly weapons per se, and the carrying of such enumerated weapons concealed on or about the person constituted a Class IV felony without any regard to the manner of the actual or intended use of the weapon; [60]*60subject, of course, to the affirmative defenses set out in § 28-1202(2). Valencia further held that with reference to other weapons, they could be determined to be deadly weapons only if the manner in which they were used, or intended to be used, was capable of producing death or serious bodily injury.

The State, in this case, would have us expand the list of weapons specifically enumerated in § 28-1202(1) to include all knives with a blade in excess of 3V2 inches in length. The State asks us to expand the specific list of per se deadly weapons to include the table steak knife in this case by considering the definition of “deadly weapon” in Neb. Rev. Stat. § 28-109(7) (Reissue 1979), which includes the word “knife,” and the definition of “knife” in Neb. Rev. Stat. § 28-1201(2) (Reissue 1979) as a “knife with a blade over three and one half inches in length.” Brief for Appellee at 5.

We refuse to expand the Valencia holding or to construe § 28-1202(1) in that fashion. The context of Chapter 28, article 12, requires that the concept of per se deadly weapon be limited to the specific weapons enumerated in § 28-1202(1). To hold' otherwise would mean that every citizen carrying a kitchen paring knife with a 4-inch blade in a picnic basket containing other appropriate picnic items would be concealing a per se deadly weapon and would be guilty of a Class IV felony without being able to explain his innocent intent. In the specific context of this case, the State would have us hold that an ordinary tool for personal dining is a per se deadly weapon. Such a result was not contemplated by the Legislature in enacting § 28-1202(1).

Section 28-1202(1), of course, must be examined to determine if the weapons in this case — the pellet gun and the steak knife — are weapons specifically enumerated in the statute. With regard to the knife, the specifically named weapons in the statute are “bowie knife, dirk or knife with a dirk blade attachment.” A “bowie knife” is “a large hunting knife adapted esp. for knife-fighting... and having a guarded handle and a strong single-edge blade typically 10 to 15 inches long ...” A “dirk” is “a long straight-bladed dagger formerly carried esp. by Scottish Highlanders,” or “a short sword formerly worn by British junior naval officers.” Webster’s Third New International Dictionary 262,642 (1968). A “knife with a dirk blade attachment” must mean a knife with a long straight blade. The steak knife in [61]*61this case is, as a matter of law, none of those and therefore is not a deadly weapon per se.

With regard to the pellet gun it is clear that it does not fall within the weapons specifically enumerated in § 28-1202(1) as a “revolver” or “pistol.” Both a revolver and pistol are firearms — a revolver being a handgun having a cylinder of several chambers that are brought successively into line with one barrel, and a pistol being a handgun whose chamber is integral with the barrel. Webster’s Third New International Dictionary (1968). A “firearm” is an instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded therein. Black’s Law Dictionary (5th ed. 1979).

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Williams, 352 N.W.2d 576, 218 Neb. 57, 1984 Neb. LEXIS 1168 (Neb. 1984).

352 N.W.2d 576 (State v. Williams) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Nguyen
881 N.W.2d 566 (Nebraska Supreme Court, 2016)
Summerall v. State
41 So. 3d 729 (Court of Appeals of Mississippi, 2010)
State v. Lewis
577 N.W.2d 774 (Nebraska Court of Appeals, 1998)
State v. Pierson
476 N.W.2d 544 (Nebraska Supreme Court, 1991)
Zgombic v. State
798 P.2d 548 (Nevada Supreme Court, 1990)
State v. Ring
447 N.W.2d 908 (Nebraska Supreme Court, 1989)
State v. Lenz
419 N.W.2d 670 (Nebraska Supreme Court, 1988)
State v. Williams
352 N.W.2d 576 (Nebraska Supreme Court, 1984)