ARKANSAS LAW REVIEW
Volume 29, Page 570
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

LEGISLATIVE NOTE

Act 696: Robbing the Hunter, or Hunting the Robber?

Gun legislation has prompted heated debates,[1] widespread lobbying on the local and national levels,[2] and has been a precarious campaign plank for many politicians.[3] The number and variance of statutes in the several states relating to possession and carrying of firearms and dangerous instruments[4] is evidence of the fact that competing interest groups do not carry the same influence in, each state.

State legislation on gun control may be divided into four general categories, although many states have statutes for more than one category. Each of the four schemes is a compromise between the competing interest groups–law and order advocates v. anti-gun control advocates. The four categories are "mere possession," "permit," "concealed weapon," and "purpose or motive."

The first scheme, which makes mere possession a crime,[5] is limited to pistols or inherently dangerous instruments. In effect these statutes put the burden of proof on the defendant to establish a lawful purpose. To eliminate the possibility of criminalizing an over inclusive group these statutes carry many exceptions and comparatively light penalties.

The "gun control" era has spawned the second scheme which is a statutory procedure for the acquisition of permits for the carrying or possession of handguns and deadly instruments.[6] There is some evidence that these "gun control" laws have caused a decrease in crime.[7] Substantive provisions generally require [Page 571] all persons who wish to buy or carry handguns or deadly instruments to procure a permit which they must carry at all times. Those in possession of a prohibited article without a corresponding permit authorizing such possession are in violation of the law. The procedural requirements for obtaining a permit are usually set out in the statute.

The third group, concealed weapon statutes, create a presumption that a dangerous or deadly weapon is intended for unlawful use if it is concealed.[8] The object of this scheme is clearly that of protecting the public by preventing an individual from having on hand a weapon of which the public is unaware, and which might be used by that individual in a fit of passion.[9] With thirty-three of the fifty states having concealed weapon statutes, in their Criminal Code,[10] this is by far the most prevalent form of gun control.

There are twelve states in the category with Arkansas which have statutes requiring some proof of purpose or motive to use the article as a weapon against another person as an element of the offense of criminal carrying of a weapon.[11] These statutes are often found in conjunction with a mere possession or concealed weapon statute and provide an additional conviction[12] or a harsher penalty[13] when specific intent can be proven. Other states use the statute to obtain a criminal conviction when one carries an otherwise lawful article with the intent to use it as a weapon against another.[14] Arkansas' criminal [Page 572] weapon statute, Act 696 of 1975,15 is a "purpose or motive" statute and appears to have been passed for the latter objective:

(1) A person commits the offense of carrying a weapon if he possesses a handgun, knife, or club on or about his person, in a vehicle occupied by him, or otherwise readily available for use with a purpose to employ it as a weapon against a person.

(2) For purposes of this section:

(a) "handgun" means any firearm with a barrel length of less than twelve (12) inches that is designed, made, or adapted to be fired with one hand.

(b) "knife" means any bladed hand instrument that is capable of inflicting serious physical injury or death by cutting or stabbing; it includes a dirk, sword or spear in a cane, razor, and ice pick.

(c) "club" means any instrument that is specially designed, made, or adapted for the purpose of inflicting serious physical injury or death by striking; it includes a blackjack, bille, and sap.

(3) It is a defense to a prosecution under this section that at the time of the act of carrying:

(a) the person is in his own dwelling or place of business or on property in which he has a possessory or proprietary interest; or

(b) the person is a law enforcement officer, prison guard, or member of the armed forces, acting in the course and scope of his official duties; or

(c) the person is assisting a law enforcement officer, prison guard, or member of the armed forces acting in the course and scope of official duties pursuant to the direction or request of such law enforcement officer, prison guard, or member of the armed forces.

(d) the person is carrying a weapon when upon a journey; or

(e) the person is a licensed security guard acting in the course and scope of his duties.

(4) Carrying a weapon is a class A misdemeanor.

Originally Arkansas had a concealed weapon statute[16] but in 1875 this was replaced by a statute prohibiting "wearing or carrying in any manner as a weapon, a pistol" or other enumerated dangerous articles.[17] The 1875 statute, with minor amendments, remained the law[18] until the passage of Act 696. Because of the fear of armed assault on the highway in the early part of Arkansas' history the 1875 statute included an exception which [Page 573] allowed persons "on a journey" to carry weapons.[19] The constitutional guarantee of "the right to keep and bear arms"[20] was believed to prohibit state restrictions on weapons of the type commonly used by the armed forces.[21] This gave rise to an exception for "such pistols as are used in the army or navy of the United States when carried uncovered and in the hand."[22] Section 3103 of the Arkansas Criminal Code Proposed Official Draft of 1974 eliminated these two defenses because of their questioned applicability to modem law.[23] The Draft also changed the element "wear or carry as a weapon"[24] to "possesses for use with a purpose to employ it as a weapon."[25] Proposed Section 3103 was not included in Act 280 of 1975 [26] which made the new Criminal Code law in Arkansas as of January 1, 1976. Instead, Proposed Section 3103 was returned to the House Judiciary Committee for revision, was called to a vote as House Bill 541 of 1975, and became Act 696 of 1975. House Bill 541 amended Proposed Section 3103 to retain the journey exception and added the requirement that the purpose include employing the article as a weapon "against a person"[27] as a compromise amendment after extensive debate.[28] The opposition to Proposed Section 3103 came from anti-gun control advocates[29] and their influence is found in the amendments incorporated in House Bill 541 which protects the rights of citizens, particularly hunters, to carry weapons.

It is the opinion of at least one State Senator that the "journey" exception was revived to give it a broader scope than previous judicial interpretation had allowed.[30] It is reasonable [Page 574] to assume that the legislature would not debate over an exception that would apply only to horseback travelers on country roads. The "journey" exception should now apply to short distance automobile travel. Although it would be sheer speculation to determine the limits of a journey, it is possible that this defense could be used effectively to negate most prosecutions.[31]

There is reason to believe that Act 696 makes no substantive changes to the old law,[32] Section 41-4501,[33] and that the judicial prima facie case rules established under Section 41-4501 as to when enumerated articles will be presumed to be carried as weapons[34] will continue to apply.[35] Nevertheless, an opinion poll of 70 Arkansas judges reveals that 77% of the judges feel that convictions under Act 696 will be more difficult to obtain.[36] The use of the word "purpose" and the inclusion of the "journey" exception seem to have created some concern on the part of the judges.[37]

Since Act 696 was written to conform to the new Criminal Code[38] the statutory definition of "purpose" as set out in the Criminal Code should be used to interpret Act 696. The Criminal Code defines "purpose" as follows:

A person acts purposely with respect to his conduct or a result thereof, when it is his conscious object to engage in conduct of that nature or to cause such a result.[39] [Page 575]

Throughout the states the difference in judicial interpretations of a defendant's purpose or intent in carrying a pistol or dangerous article depends on what articles and what circumstances of possession the legislature intends to be lawful. Anything beyond that requires proof of specific intent.[40]

In dealing with dangerous instruments, excluding firearms, New York has developed an easily applied prima facie case rule for its statute:[41]

If the instrumentality or weapon possessed is one of those specifically mentioned in the statute, then such intent is presumed from possession without more[42] and this applies to items which ordinarily and readily fall within the group of items so specified.[43] Acts otherwise innocent and lawful do not become criminal unless there is a clear and positive expression of legislative intent to make them criminal.[44]

New York amended its statute in 1963 to include separate lists of "malum in se" instruments Which carry a presumption of unlawful intent and "malum prohibitum" instruments which require independent proof of unlawful intent.[45]

State statutes which include pistols or handguns in their list of articles requiring proof of purpose or unlawful intent presume it is lawful to own and carry a pistol.[46] Proof of intent is an "essential, specific ingredient of the offense which cannot be proved alone by proof of commission of the act."[47] In Arkansas there is evidence that the anti-gun control advocates are predominant in the Arkansas legislature and that Act 696 protects the right of persons to own, possess, and carry guns as long as they have no unlawful purpose in doing so. Absent a showing to the contrary the only interpretation that can be given to Act 696 is that possession is lawful and that proof of specific intent [Page 576] is required.[48] In addition, if a defendant can raise a reasonable doubt that it was not his "conscious object"[49] to employ the article he carried as a weapon against a person he must be found not guilty.

Looking to rules of statutory construction, Act 696 is sufficiently different from Section 41-4501 [50] to preclude the use of "previous judicial construction for re-enacted statutes."[51] The legislature also included a statutory presumption of criminal purpose for knives with blades of three and one-half inches or longer.[52] The rule of expressio unius est exclusio alterius[53] would imply that the legislature did not intend that any presumptions of criminal purpose not expressed in the statute would apply. In other words, if the legislature intended that the mere carrying of a handgun be presumed to be for the purpose of employing it as a weapon against a person, as would be the law if the previous judicial interpretations of Section 41-4501 [54] apply to Act 696, the legislature would have so stated when it was enumerating presumptions. The most important rule–that criminal statutes shall be strictly construed–should unequivocally put the burden on the state to prove criminal purpose with all doubts resolved in favor of the defendant.[55]

Because it is not clear what constitutes criminal carrying of a weapon under Act 696 the legislature should re-write the Act. Several schemes are available but one that distinguishes handguns and deadly instruments and treats them separately allows [Page 577] for greater clarity in legislative intent and more consistent judicial interpretation.

The New York scheme of categorizing deadly instruments into "malum. in se" and "malum prohibitum" groups[56] should be adopted. Since this is a "purpose or motive" scheme it would probably conform to the current legislative philosophy. However, because the New York Statute deals with presumptions it is a preferred form.

In the area of handguns, in spite of the Arkansas legislature's anti-handgun control policy, a permit procedure should be mandatory. In the absence of effective uniform state gun control there is a movement in Congress to, initiate national control.[57] A permit procedure would also provide a firmer statutory base upon which arrests for carrying handguns can be made.[58] Protective criteria can easily be included to insure to the Arkansas citizenry that all law abiding persons may purchase and carry firearms. A mandatory permit procedure has even been implemented in some states that requires issuance of permits to all qualified persons.[59] This should provide all the protection that is necessary to assure that the "right to bear arms" is not compromised.

CHARLES R. NESTRUD

1. Comment, Shooting to Kill the Handgun: Time to Martyr Another American "Hero," 51 J. URB. L. 491 (1973) (arguments favoring gun control); Response, A Reply to Advocates of Gun Control Law, 52 J. URB. L 599 (1974).

2. U.S. News and World Report, July 10, 1972, at 70.

3. New Yorker, Nov. 27,1971, at 41; US. News and World Report, Aug. 21, 1972, at 37.

4. New York Times, Sept. 17, 1972, § 6 (Magazine) at 28 (over 20,000 state and local gun laws and ordinances).

5. States with "mere possession" gun control statutes are: Maryland, New Hampshire, New Mexico, South Carolina, Texas, and Washington.

6. States with "permit" statutes are Alaska, Connecticut, Delaware, Dist. of Columbia, Florida, Georgia, Iowa, Massachusetts, Michigan, New Hampshire, New Jersey, New York, Ohio, Oregon and South Dakota.

7. Mosk, Gun Control Legislation: Valid and Necessary, 14 N.Y.L.F. 694, 716 (1968).

8. State v. Simon, 163 Minn. 317, 203 N.W. 989 (1925).

9. 79 Am. Jur. 2d Weapons and Firearms § 8 (1975); 94 C.J.S. Weapons § 5b(1) (1956).

10. States with "concealed weapon" statutes are Alabama, Alaska, Arizona, California, Colorado, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Mississippi, Missouri Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Washington, Wisconsin, and Wyoming.

11. The twelve purpose or motive statutes are: Ill. ANN. STAT. 38-24-1(2) (1970); BURNS IND. STAT. ANN. § 35-1-79-2 (1975); IOWA CODE ANN. § 695.1 (1950); MD. ANN. CODE 27 § 36 (Supp. 1975); MINN. STAT. ANN. § 60.66(5); REV. CODE MONT. § 94-909 (1947); MCKINNEY'S CONSOL. LAWS OF N.Y., Penal Law 265.05 (1965); ORE. REV. STAT. §166.220(1) (1974); TENN. CODE ANN. 39-4901 (Supp. 1974); UTAH CODE ANN. 1 76-10-507 (Supp. 1975); VERM. STAT. ANN. 13 4001 (1974); and WYO. STAT. § 6-237.1 (Supp. 1975).

12. State v. Hodge, 84 Mont. 581, 273 P. 1049 (1929); ARK. STAT. ANN. §; 41-3102, Comment (Repl. 1976) (dealing with possession of an instrument of crime the statute is additional to an inchoate offense).

13. Corbin v. State, 237 Md. 486, 206 A.2d 809 (1965).

14. People v. Adamkiewicz, 298 N.Y. 176, 81 N.E.2d. 76 (1948); People v. Deane, 259 Cal. App. 2d 82, 66 Cal. Rptr. 177 (1968).

15. ACTS or ARK., Apr. 3,1975, § 696 (1975).

16. REV. STAT. or ARK., Ch. 44, § 3 (1937).

17. ACTS or ARK., Feb. 16,1875, § 1, p. 155 (1875).

18. The most recent amended form is ARK. STAT. ANN. § 41-4501 (Supp. 1973).

19. ACTS OF ARK., Feb. 16, 1875, § 1, p. 155 (1875); journey exception explained in ARK. CRIM. CODE § 3103, Comment, (Prop. Off. Draft, Dec. 1974) and applied in Carr v. State, 34 Ark. 448 (1879); for a similar construction, see, e.g., Morgan v. Town of Heidelberg, 246 Miss. 481, 150 S.W.2d 512 (1963).

20. U.S. CONST., amend. II; ARK. CONST. amend. II

21. ARK. CRIM. CODE § 3103, Comment, (Prop. Off. Draft, Dec. 1974); Fife v. State, 31 Ark. 455 (1876).

22. ARK. STAT. ANN. §; 41-4501 (Supp. 1975).

23. ARK. CRIM. CODE § 3103, Comment, (Prop. Off. Draft, Dec. 1974)

24. ARK. STAT. ANN. § 41-4501 (Supp. 1973).

25. ARK. CRIM. CODE § 3103 (Prop. Off. Draft, Dec. 1974).

26. ACTS OF ARK., Mar. 3, 1975, § 280 (1975).

27. ACTS OF ARK., Apr. 3, 1975, § 696 (1975).

28. Letter from William Sherman to Charles Nestrud, Sept. 24, 1975 (Mr. Sherman is the Arkansas State Representative from Dist. 4, Pos. 2, Pulaski County, co-sponsor of H.B. 541, and major spokesman in its favor).

29. Id.

30. Conversation with Larry D. Douglas, Arkansas Senator, Dist. 13.

31. This was commented upon by Senator Douglas, id., and mentioned as a problem by some of the judges in an Arkansas Judicial Department questionnaire.

32. ARK. CRIM. CODE, § 3103, Comment (Prop. Off. Draft, Dec. 1974); Letter from William Sherman, supra, note 28; Atty. Gen. Opinion 75-75 (July 18, 1975) contra Official Opinion from Pros. Atty. Lee A. Munson, 6th Jud. Dist., written upon request from Police Capt. Tucker, North Little Rock, Arkansas.

33. ARK. STAT. ANN. § 41-4501 (Supp. 1975).

34. Wylie v. State, 131 Ark. 572, 574, 199 S.W. 905, 906 (1917) (concealed pistol); Stephens v. City of Fort Smith, 227 Ark. 609, 300 S.W.2d 14 (1957) (loaded pistol in the glove compartment of automobile); Clark v. State, 253 Ark. 454, 486 S.W.2d 677 (1972) (loaded pistol under front seat of automobile); State v. Wardlaw, 43 Ark. 73 (1884) (pistol need not be loaded); but see Rowland v. State, 255 Ark. 215, 499 S.W.2d 623 (1973) (shotgun with butcher knife attached not covered by the statute).

35. Supra note 32.

36. Questionnaire from the State of Arkansas Judicial Department pertaining to Act 696 of 1975.

37. Id.

38. Act 696 uses the new Code's scheme of punishment (i.e., Class D Misdemeanor).

39. AR& STAT. ANN. § 41-203(1) (1976); for a similar judicial interpretation see, e.g., Allison v. State, 161 Ark. 304, 256 S.W. 42 (1923).

40. Biggs v. State, 207 Tenn. 603, 341 S.W.2d 737 (1960); People v. Adamkiewicz, supra note 14; People v. Deane, supra note 14.

41. MCKINNEY'S CONSOL. LAWS or N.Y., Penal Law § 1897 (1898); construed in People v. Adamkiewicz, supra note 14; for the proposition that Arkansas may have judicial precedent for this construction see, e.g. Pixley v. State, 203 Ark. 42, 155 S.W.2d 710 (1941).

42. People v. Panitz, 251 App. Div. 276, 296 N.Y.S. 80 (1937) (possession of bayonet carries a presumption).

43. People v. McPherson, 200 N.Y. 123, 115 N.E. 515 (1917) (possession of baseball bat adapted to a club carries a presumption).

44. People v. Adamkiewicz, supra note 14 (possession of an ice pick by an iceman carries no presumption).

45. MCKINNEY'S CONSOL. LAWS or N.Y., Penal Law § 265.05 (1965).

46. See, e.g., Liming v. State, 417 S.W.2d 769 (Tenn. 1967); State v. Hodge, supra note 12; Brown v. State, 156 Ark. 288, 245 S.W. 813 (1922).

47. Biggs v. State, supra note 40.

48. By analogy, Act 280 of 1975, § 3102, a statute similar to Act 696 of 1975, prohibits possession of an "instrument of crime with a purpose to employ it criminally." § 3102 is now part of the new Criminal Code that went into effect on January 1, 1976. The official commentary, although admitting that possession of a criminal instrument may provide a sufficient basis for police intervention, makes it clear that "the offense is defined so as to require the state to prove that the possessor planned to use the instrument for criminal purposes." (emphasis added.)

49. ARK. STAT. ANN. § 41-203 (1) (1976).

50. ARK. STAT. ANN. § 41-4501 (Supp. 1975)

51. Hendricks v. Hodges, Sec'y of State, 122 Ark. 82, 182 S.W. 538 (1916).

52. ACTS OF ARK., Apr. 3, 1975, § 696 (1975).

53. "Expression of one thing is exclusion of the other," BLACK’S LAW DICTIONARY, 692 (4th ed., 1951); Little Rock & F.S.R.R. Co. v. Clifton et al., 38 Ark. 205 (1881); Hackney v. Southwest Hotels, Inc., 210 Ark. 234, 195 S.W.2d 55 (1946); Sumpter v. Duffie, 80 Ark. 369, 97 S.W. 435 (1906).

54. ARK. STAT. ANN. § 41-4501 (Supp. 1975).

55. Rowland v. State, 255 Ark. 215, 499 S.W.2d 623 (1973); Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972); Burke v. State, 235 Ark. 882, 362 S.W.2d 695, cert. den., 373 U.S. 922 (1962); but see U.S. v. Anderson, 359 F. Supp. 61 (E.D. Ark. 1973).

56. MCKINNEY'S CONSOL. LAWS or N.Y., Penal Law § 265.05 (1965).

57. 51 J. URB. L., supra note 1, at 508; Arkansas Gazette, Oct. 20, 1975, at 5A, col. 4.

58. There are some prosecutors who feel that Act 696 serves a valid law enforcement function in spite of its strict burden of proof. When police investigate suspicious criminal activity, Act 696 is sufficiently broad to warrant an arrest for probable cause. Although a majority of the cases may be dismissed at trial for insufficient evidence of the requisite purpose, the initial suspicious conduct is curtailed. However, the validity of this argument will tend to turn on the local judicial attitude toward this type of police behavior. A permit procedure would serve the function more efficiently by eliminating the "purpose" element and any claim of "selective enforcement." See, e.g., Papachristo v. City of Jacksonville, 405 U.S. 156 (1972).

59. N.J. STAT. ANN. § 2A: 151-1, 63 (1969) (this is a comprehensive statutory scheme for permits in the area of handguns).