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(- Cal. 222 Pac, 801.) proved by one of the world's great- tion of the adoption of the theory est churches. Many children base or dogma contained therein, or any their religious education upon its approval of the book itself, except text. We do not assume to decide as a work of literature fit to be inthe comparative merits of the two cluded in a reference library. For versions. We do, however, hold aught that appears in the instant that either or both may be pur- case the library in question may alchased for and placed in a public ready contain copies of the Douai school library without violation of version of the Bible, as well as copthe law of this state.
ies of the Talmud, Koran, and If it were a fact that the King teachings of Confucius. If the DouJames version of the Bible was ai version and these other books are sought to be placed in the public not already in the library, we have school library to the exclusion of no right to assume that they will not all other versions of the Bible, or if be added thereto in the future. it appeared to be a fact that this That such action would be legal and particular version or any other ver- appropriate we have no doubt. sion of the Bible was to be used as We are not required in this case a textbook for a prescribed course to decide, nor are we to be underof study, or to be used in reading stood as deciding, the question of therefrom to the pupils as a part whether or not the use of the Bible of school exercises, it might then be for class instruction amounts to the well argued that such circumstances teaching of sectarian or denomiamounted to an implied declaration
national doctrine, nor to consider that this version was the only true
whether or to what extent its readversion of the Scriptures, and that all others were false in so far as not
ing may be made a part of the exer
cises in the schools, without offendin accord therewith. So used, and under such circumstances, it mighting the provisions of the state Conbe justly claimed to be used as a ba- stitution and statutes. sis for sectarian instruction. Such The judgment is affirmed. are not the facts in the case at bar.
All concur. The mere act of purchasing a book to be added to the school library Petition for rehearing denied does not carry with it any implica- February 21, 1924.
Sectarianism in schools.
The present annotation is supple- The court avoids decision as to whethmental to those in 5 A.L.R. 866, and er reading from the Bible to the 20 A.L.R. 1351.
pupils, or using it as a basis for In the reported case (EVANS V. instruction, is permissible. SELMA UNION HIGH SCHOOL DIST. ante, The holding in Smith v. Donahue 1121) it is held that the King James (1922) 202 App. Div. 656, 195 N. Y. version of the Bible is not a sectarian, Supp. 715, was to the effect that pubpartisan, or denominational publica- lic funds could not be used to furnish tion, and that the mere placing of textbooks and other school supplies copies thereof in a public school to parochial or other private schools. library is not contrary to the Con- It appeared that the defendants, memstitution and statute of California re- bers of the board of education, were lating to religious toleration and re- furnishing textbooks and other school quiring the school authorities to ex- supplies to certain parochial schools clude from the public schools and maintained nd controlled by the school libraries all books, publica- Roman Catholic Church and independtions, or papers of a sectarian, parti- ent of the public school system. In san, denominational character. support of the holding the court de
clared that it was the policy of the other than the public schools. The law, both by Constitution and statute, evidence showed that some of the not to join religious instruction with school children who were being transsecular education in the the private ported a
considerable distance to schools, and that accordingly the
school were carried to a parochial state, or a subdivision thereof, could
school. The court said that the scope not assist the parochial schools maintained for the purpose of furthering
and purpose of the free education a distinct religious tenet.
statutes (Stat. 1921, § 40.16, subd. 1, c) In State ex rel. Van Straten v.
was to provide free nonsectarian inMilquet (1923) 180 Wis. 109, 192 N.
struction for all persons of school age, W. 392, it was held that a school
and that the school board was not district could not be burdened with authorized to expend public money for the expense of transporting pupils to
R. E. La G.
(159 Ark. 498, 252 S. W. 18.) Weapons - right to carry - servant on employer's premises.
Agents of a railroad company employed to guard its property are not within the exception of a statute forbidding the carrying of pistols as weapons, which permits one to carry such weapon upon his own premises. See note on this question beginning on page 1128.]
(Smith and Hart, JJ., dissent.)
APPEAL by defendants from a judgment of the Circuit Court for Pulaski County (Wade, J.) convicting them of carrying concealed weapons. Affirmed.
The facts are stated in the opinion of the court.
Messrs. Edgar B. Kinsworthy and Clark v. State, 49 Ark. 174, 4 S. W. Robert E. Wiley, for appellants: 658; Kinkead v. State, 45 Ark. 536.
Defendants are within the exception Smith, J., delivered the opinion of of the statute against carrying con- the court: cealed weapons.
Appellants were tried an State v. Terry, 93 N. C. 585, 53 Am. Rep. 472; Sanderson v. State, Тех. .
agreed statement of facts and con
victed of carrying concealed weapCrim. Rep. —, 50 S. W. 348; State v. Anderson, 129 N. C. 521, 39 S. E. 824;
ons. The substance of the agreed Lemmons v. State, 56 Ark. 559, 20 S.
statement of facts is as follows: W. 404; Clark v. State, 49 Ark. 174, 4 Each of the defendants carried a S. W. 658.
pistol as a weapon in the railroad Messrs. J. S. Utley, Attorney Gen- yards belonging to the Missouri Paeral, John L. Carter and William T. cific Railroad Company in the city Hammock, Assistant Attorneys Gen- of North Little Rock. They were eral, for the State:
each then and there engaged in the Defendants had no right to carry
performance of their duties as spethe concealed weapons on the premises of the railroad company.
cial guard in the service of the rail8 R. C. L. 293; State v. Terry, 93
road company for which they had N. C. 585, 53 Am. Rep. 472; State v.
been employed. Perry, 120 N. C. 582, 26 S. E. 915, 1008;
The railroad company is a corpo(159 Ark. $98, 252 S. W. 18.) ration authorized to do business in “The said railroad company unArkansas, and was then and there, dertook to hire other persons to take through its officers and agents, in the place of said strikers, and did possession of the premises in ques- hire and have such persons, and put tion. Said premises consisted of a them to work on the premises aforelarge parcel of land on which the said. The officers and managers of railroad company was then main- said railroad company considered it taining yards, consisting of rail- necessary to station special guards road tracks, machine shops, coal upon said premises for the purpose houses, storage houses, water tanks, of protecting the property located tool houses, and other buildings and on said premises and the persons structures in large numbers, for use engaged in the work formerly done as railroad_terminals for the cities by the strikers on said premises, of Little Rock and North Little from depredation and injury by the Rock, for the purpose of carrying unlawful acts of other persons. For on its business as a common car- that purpose said railroad company rier.
had employed as its servants and It was further agreed that prior agents the defendants, had stationed to July 1, 1922, said railroad com- them on said property, and held pany employed several hundred me- them responsible for safeguarding chanics, carpenters, machinists, and the said property to the extent of skilled laborers of various kinds, their ability to guard and protect it. who worked on said premises in the They were engaged in the performconstruction and repair of cars, lo- ance of their duties as such special comotives, and other structures be- guards when they carried the pislonging to the said railroad com- tols as weapons as hereinbefore pany, to keep and maintain the stated. property of said railroad company “The pistols carried by the defor the purpose of carrying out its fendants were not such pistols as duties as a common carrier. On are used in the Army or Navy of the July 1, 1922, practically all of said United States." workmen quit their work and went By $ 2804, Crawford & M. Dig., out on a strike, in compliance with it is made unlawful for any purpose the orders of the governing bodies to carry a pistol as a weapon, but of the several unions or crafts of there is a proviso that “nothing in which said workmen were members, this act shall be so construed as to and that said strike was in full force prohibit any person from carrying from that date until and after the any weapon when upon a journey or said July 5, 1922. In the progress upon his premises.' of said strike, said strikers and their It is the insistence of counsel for sympathizers picketed the
the said the appellants that under the facts premises of said railroad company, recited above appellants are entitled and congregated in large numbers to the benefit of the near all regular points of ingress or
permit- to carry-servegress to said premises, and under- ting one to carry a
ant on employ
er's premises. took to persuade and prevent any weapon upon
his persons from working in their premises. But the majority of the places as mechanics and craftsmen judges do not think so. as aforesaid, and thus to interfere No one of these guards had the with the conduct by said company exclusive possession of the premises, of its business as a common carrier. or any part of them, nor did the There were threats of violence
threats of violence guards, altogether, have the excluagainst those who undertook to re- sive possession of the premises, or main in the service of said railroad any part of them. The premises company or to enter said service to were primarily and principally used take the place of the strikers, and and occupied by the employees of there were acts of violence against the company who were engaged in
the performance of the labor for
which the various buildings of the premises. Obviously a builder, haycompany were intended.
ing merely a lien for his work and In 8 R. C. L. p. 293, it is said: materials, has no such interest." "An exception in a statute which The language quoted was somepermits a person to carry a weapon what qualified in the case of Clark on his own premises will not be a v. State, 49 Ark. 174, 4 S. W. 658, defense to a prosecution of a serv- where the court said that doubtless ant who at the time is on his mas- a tenant in possession of leased ter's premises."
premises has such an interest in the In volume 2 of McClain on Crimi- premises as to be entitled to the nal Law, $ 1035, it is said: “Some benefit of the exception. statutes permit one to carry a con- In the opinion of the majority, apcealed weapon on his own prem- pellants had no interest or estate in ises. A laborer on the land of an- the premises as tenants or otherother is not within such exception; wise. They were there as employees nor is one upon his own premises only.
only. There was no part of the when in fact he has leased the prem- premises, the possession of which ises to another without reservation they did not share with other guards of authority to enter thereon. The and employees, and they were not, common stairway or halls of a build- therefore, upon their premises withing, occupied by offices of different in the meaning of the proviso conpersons, are not within the descrip- tained in the statute. tion of one's ‘own property.' So one It is true the appellants were upengaged in supervising the erection on the premises to exclude certain of a building for another is not on other persons from the premises ; his own premises. Under a statute and this is a right which the railnot making such an exception, it is road company had as the owner of no defense that the weapon was car- the premises; but, in the opinion of ried within the curtilage of defend- the majority, the exercise of this ant's abode."
right did not operate to bring them In Kinkead v. State, 45 Ark, 536, within the exception contained in the defendant was a contractor en- the statute. gaged in the erection of a certain It is unlawful to carry weapons, building for another person, and he and only those persons may do so was arrested in the building while who come within the excepted class, in the supervision of the work, and and as, in the opinion of the majora pistol was found on his person. ity, the appellants were not on their It was insisted that he came within own premises, the court below propthe exception of the statute allowing erly adjudged them guilty, and that one to carry weapons upon his own judgment is affirmed. premises; but the court said: “The
Hart, J., and the writer, are of exception only protects such as have opinion that appellants are within an estate or interest in the real the exception contained in the statproperty which constitutes the ute.
Scope and effect of exception in statute forbidding carrying of weapons, as to
person on his own premises.
A mere employee having no legal interest in the premises of his em. ployer, but carrying a weapon there. on, 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 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
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.
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.
1 And in Coker v. State (Ga.) supra, it was held that the accused, who had