ration authorized to do business in Arkansas, and was then and there, through its officers and agents, in possession of the premises in question. Said premises consisted of a large parcel of land on which the railroad company was then maintaining yards, consisting of railroad tracks, machine shops, coal houses, storage houses, water tanks, tool houses, and other buildings and structures in large numbers, for use as railroad terminals for the cities of Little Rock and North Little Rock, for the purpose of carrying on its business as a common carrier.

It was further agreed that prior to July 1, 1922, said railroad company employed several hundred mechanics, carpenters, machinists, and skilled laborers of various kinds, who worked on said premises in the construction and repair of cars, locomotives, and other structures belonging to the said railroad company, to keep and maintain the property of said railroad company for the purpose of carrying out its duties as a common carrier. On July 1, 1922, practically all of said workmen quit their work and went out on a strike, in compliance with the orders of the governing bodies of the several unions or crafts of which said workmen were members, and that said strike was in full force from that date until and after the said July 5, 1922. In the progress of said strike, said strikers and their sympathizers picketed the said premises of said railroad company, and congregated in large numbers near all regular points of ingress or egress to said premises, and undertook to persuade and prevent any persons from working in their places as mechanics and craftsmen as aforesaid, and thus to interfere with the conduct by said company of its business as a common carrier. There were threats of violence against those who undertook to remain in the service of said railroad company or to enter said service to take the place of the strikers, and there were acts of violence against such persons.

"The said railroad company undertook to hire other persons to take the place of said strikers, and did hire and have such persons, and put them to work on the premises aforesaid. The officers and managers of said railroad company considered it necessary to station special guards upon said premises for the purpose of protecting the property located on said premises and the persons engaged in the work formerly done by the strikers on said premises, from depredation and injury by the unlawful acts of other persons. For that purpose said railroad company had employed as its servants and agents the defendants, had stationed them on said property, and held them responsible for safeguarding the said property to the extent of their ability to guard and protect it. They were engaged in the performance of their duties as such special guards when they carried the pistols as weapons as herein before stated.

"The pistols carried by the defendants were not such pistols as are used in the Army or Navy of the United States."

By § 2804, Crawford & M. Dig., it is made unlawful for any purpose to carry a pistol as a weapon, but there is a proviso that "nothing in this act shall be so construed as to prohibit any person from carrying any weapon when upon a journey or upon his premises."

Weapons-right

It is the insistence of counsel for the appellants that under the facts recited above appellants are entitled to the benefit of the exception permit- to carry-servting one to carry a ant on employweapon upon his premises. But the majority of the judges do not think so.

er's premises.

No one of these guards had the exclusive possession of the premises, or any part of them, nor did the guards, altogether, have the exclusive possession of the premises, or any part of them. The premises were primarily and principally used and occupied by the employees of the company who were engaged in the performance of the labor for

which the various buildings of the company were intended.

In 8 R. C. L. p. 293, it is said: "An exception in a statute which permits a person to carry a weapon on his own premises will not be a defense to a prosecution of a servant who at the time is on his master's premises."

In volume 2 of McClain on Criminal Law, § 1035, it is said: "Some statutes permit one to carry a concealed weapon on his own premises. A laborer on the land of another is not within such exception; nor is one upon his own premises when in fact he has leased the premises to another without reservation of authority to enter thereon. The common stairway or halls of a building, occupied by offices of different persons, are not within the description of one's 'own property.' So one engaged in supervising the erection of a building for another is not on his own premises. Under a statute not making such an exception, it is no defense that the weapon was carried within the curtilage of defendant's abode."

In Kinkead v. State, 45 Ark. 536, the defendant was a contractor engaged in the erection of a certain building for another person, and he was arrested in the building while in the supervision of the work, and a pistol was found on his person. It was insisted that he came within the exception of the statute allowing one to carry weapons upon his own premises; but the court said: "The exception only protects such as have an estate or interest in the real property which which constitutes the

premises. Obviously a builder, having merely a lien for his work and materials, has no such interest."

The language quoted was somewhat qualified in the case of Clark v. State, 49 Ark. 174, 4 S. W. 658, where the court said that doubtless a tenant in possession of leased premises has such an interest in the premises as to be entitled to the benefit of the exception.

In the opinion of the majority, appellants had no interest or estate in the premises as tenants or otherwise. They were there as employees only. There was no part of the premises, the possession of which they did not share with other guards and employees, and they were not, therefore, upon their premises within the meaning of the proviso contained in the statute.

It is true the appellants were upon the premises to exclude certain other persons from the premises; and this is a right which the railroad company had as the owner of the premises; but, in the opinion of the majority, the exercise of this right did not operate to bring them within the exception contained in the statute.

It is unlawful to carry weapons, and only those persons may do so who come within the excepted class, and as, in the opinion of the majority, the appellants were not on their own premises, the court below properly adjudged them guilty, and that judgment is affirmed.

Hart, J., and the writer, are of opinion that appellants are within the exception contained in the statute.

Employee.

A mere employee having no legal interest in the premises of his em ployer, but carrying a weapon thereon, is not on his own premises within the meaning of an exception as to a person on his own premises, in a statute forbidding carrying a weapon.

Kinkead v. State (1885) 45 Ark. 536; State v. Terry (1885) 93 N. C. 585, 53 Am. Rep. 472; State v. Perry (1897) 120 N. C. 580, 26 S. E. 915, 1008; State v. Bridgers (1915) 169 N. C. 309, 84 S. E. 689. And see the reported case (BROWN V. STATE, ante, 1126).

Thus, in the reported case (BROWN v. STATE) it is held that the defendants, employed as guards of railroad property during a strike, were not on their own premises and were not entitled to the protection of the exception in the statute against the carrying of weapons, to the effect that a person may carry a weapon while on his own premises.

In Kinkead v. State (Ark.) supra, a case decided in the same jurisdiction and involving the same exception in the statute as in the reported case, the court rendered a similar decision. It was held that an independent contractor, engaged in the erection of a building and carrying a pistol about his person while supervising the work, was not on his own premises within the meaning of the statute. The court laid down the rule that the exception only protected such persons as had an estate or interest in the real property which constituted the premises, and did not apply to a builder who had merely a lien for work and materials.

A similar view was adopted by the court in State v. Terry (1885) 93 N. C. 585, 53 Am. Rep. 472, wherein a farm hand was convicted of carrying a concealed weapon while at his work. The evidence showed that the defendant was employed as a farm hand by the prosecutor, but had his residence some distance away. The North Carolina statute prohibited any person carrying a concealed weapon except when on his own premises. The holding was to the effect that the defendant, simply employed as a laborer, was not vested with any rights of dominion over the premises. as owner, tenant either at will or by sufferance, agent, overseer, or superintendent.

It has been held that, although a general manager and supervisor of a turnpike company was given complete control over the company's property and had his residence in a house on company land beside the turnpike, when he was on the turnpike he was not on his own premises, and could be convicted of carrying a concealed weapon. State v. Perry (1897) 120

N. C. 580, 26 S. E. 915, 1008. In support of this view the court said that the defendant's own premises were his dwelling house and the land which went with it, and not the public highways, over which the public had a right to travel and of which he had no exclusive possession.

It was held in State v. Bridgers (1915) 169 N. C. 309, 84 S. E. 689, that a superintendent or overseer of a carding room in a cotton mill was not "on his own premises" while in the mill, and was criminally liable for carrying a concealed weapon therein. The record showed that the accused merely had charge of one floor of the mill, and had no control over the rest of the factory where he carried the weapon. By way of dictum, the court said: "Rarely can an official of a corporation, unless a watchman, be said to be 'on his own premises,' within this statute, for he does not stand in the shoes of the owner for this purpose. Certainly neither the superintendent or conductor of a street car line, nor the superintendent or conductor of a railroad, would be authorized, unless commissioned as a policeman under the statute, to carry a concealed weapon."

But where an employee is put in possession of premises in lieu of the owner, he is on his own premises and may carry a weapon. Coker v. State (1912) 12 Ga. App. 425, 76 S. E. 103, 991; State v. Anderson (1901) 129 N. C. 521, 39 S. E. 824; Sanderson v. State (1899) Tex. Crim. Rep. 50 S. W. 348.

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Thus, a night watchman left in absolute control of private premises is on his own premises within the meaning of the statute. State v. Anderson (1901) 129 N. C. 521, 39 S. E. 824. The decision was based on the theory that the watchman was to be classed as an agent or overseer vested with the right of dominion, and that the exception applied to a person who was in possession in lieu of the owner of the premises, and who was protecting the premises just as the owner would do if present in person.

And in Coker v. State (Ga.) supra,' it was held that the accused, who had