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(159 Ark. 498, 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

Weapons-right near all regular points of ingress or exception 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 persons from working in their premises.

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 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 such persons.

the performance of the labor for

upon his

which the various buildings of the premises. Obviously a builder, havcompany 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 sery- 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. 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.

ANNOTATION.

Scope and effect of exception in statute forbidding carrying of weapons, as to

person on his own premises.

Employee.

A mere employee having no legal interest in the premises of his employer, 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

a

weapon.

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charge of his mother's plantation, considered his premises or place of where he resided, was protected by business. the exception of a person on his own And the exemption was held not to premises in a statute providing that be applicable in Lattimore v. State it should be a penal offense for any- (Tex.) supra, wherein the defendant one to carry around with him on his was a rural mail carrier and carried person, or to have in his manual pos- a pistol while going over his route. session outside of his own home or It was contended that, while the deplace of business, a pistol or revolver, fendant was engaged in the carrying without first obtaining a license.

and distributing of mail in a vehicle So, it has been held that where the as a mail carrier, he was on his own appellant had full control of another's premises and at his own place of pasture and live stock, he was not business. The holding was to the liable for carrying a concealed effect that the public roads of the weapon thereon, Sanderson v. State state or a buggy going along them (Tex.) supra.

could not be construed to be either As to effect on rights of employee the defendant's premises or place of of exception permitting carrying of business, in contemplation of law. weapons at one's place of business, In denying the application of the see Miller v. State (1913) 12 Ga. App. exception, the court said that “on 479, 77 S. E. 653, set out infra under one's own premises or place of busiheading, “Person at place of busi- ness," in contemplation of the law, ness."

had reference to a particular localiPerson on public road.

ty, appropriated exclusively to a local One who carries a weapon on

business, such as a farm, store, shop, public highway is not on his own

or dwelling house, and the busines3 premises within an exception to a

only such as was usually carried on prohibition against carrying weapons.

upon a farm, in the store or shop, or Moss v. State (1898) 65 Ark. 368, 45

other appropriate local place, so that S. W. 987; Leigh v. State (1921) 26

woods, prairies, or even public roads, Ga. App. 637, 107 S. E. 284; State v.

could in no proper sense be included Perry (1897) 120 N. C. 580, 26 S. E.

within the term, since no right to ex915, 1008; Lattimore v. State (1912),

clusive appropriation could be had. 65 Tex. Crim. Rep. 490, 145 S. W. In two jurisdictions, however, the 588.

contrary was held where the roads This view was adopted by the court

ran through and over the premises of in Moss v. State (Ark.) supra, where

the accused. State v. Hewell (1884) in it appeared that the defendant car

90 N. C. 705; Ball v. State (1894) – ried a pistol on a public road running

Tex. Crim. Rep. 25 S. W. 627; over her husband's lands. The court

Ross v. State (1894) Tex. Crim. held that the rule was not altered by

Rep. —, 28 S. W. 199. reason of the husband owning the

It was held in Ball v. State (1894) land over which the road ran, as the

Tex. Crim. Rep. 25 S. W. 627,

that the exception, “on his own prempurpose of the statute was to con

ises," should be applied to a public serve the public peace, especially

road which ran through and over the on highways and in other places open

premises on which the accused lived, to the public and not controlled by

so that he could not be held guilty for private individuals,

carrying a pistol while on that porIn Leigh v. State (1921) 26 Ga. App. tion of the road. 637, 107 S. E. 284, the court said that

And it was similarly held in Ross although a cropper had a right to v. State (Tex.) supra, where the apcarry a pistol without a license any- pellant carried on his person a pistol where on his farm, he had no such while walking on a public road which privilege on a public road, which was ran over the premises where he lived. open to be shared by all the public Licensee. and could under no circumstances be A mere licensee is not on his own

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premises within the scope of an ex

that, although the exception gave ception as to the carrying of weapons. him a right to carry a pistol on his Nichols v. State (1912) 4 Ala. App. own premises or at his regular place 115, 58 So. 681; Posey v. State (1912) of business, he was confined to the 4 Ala. App. 118, 59 So. 234; Clark two pieces of land controlled excluv. State (1887) 49 Ark. 174, 4 S. W. sively by himself, and could have no 658; Lemmons v. State (1892) 56 such right over the whole plantation. Ark. 559, 20 S. W. 404; Featherston It was held in Lemmons V. State v. State (1896) 35 Tex. Crim. Rep. (1892) 56 Ark. 559, 20 S. W. 404, that 612, 34 S. W. 276, 938; Whitesides v. the exception did not protect a son State (1900) 42 Tex. Crim. Rep. 151, carrying a weapon on his father's 58 S. W. 1016; Banks v. State (1906) woodlands, over which he had a mere

Tex. Crim. Rep. —, 98 S. W. 242; license to enter and cut wood. It apSolosky v. State (1922) 90 Tex. Crim. peared that the defendant, an Rep. 537, 236 S. W. 742.

married son living with his father, The exception was held not to ap- cultivated a portion of the farm, but ply in Whitesides v. State (1900) 42 had only a mere license to enter the Tex. Crim. Rep. 151, 58 S. W. 1016, premises where he carried the weapwherein it appeared that the appellant on. The defendant offered as ground carried a pistol over certain pastures of error the refusal of the trial which he had a mere license to use for court to instruct that if the accused the pasturing of his live stock. The was a single person, lived with his court reasoned that the appellant, father on the tract of land, and made having no legal interest in the prem- his home there, he was on his own ises, but a mere license to turn his premises and entitled to carry the live stock into the pasture in common pistol on the premises. The court with others, had no such dominion denied the error on the ground that over them as to constitute his pres- the instruction would make the entire ence there “being on his own prem- farm the premises of the defendant ises,” and bring him within the ex- simply because he lived there, even ception in the statute.

though he had no control, either exIt was held in Solosky v. State clusively or jointly with his father, (Tex.) supra, that the defendant, over any lands except those he culticarrying concealed weapons upon

vated. Thereupon the court laid down premises belonging to his divorced the rule that a son residing on his wife, was not on his own premises father's premises could lawfully carry within the meaning of the exception, a pistol on the grounds habitually and was not exempt from prosecution. used in immediate connection with the The court declared that the judgment dwelling house and forming the soof divorce had devested the husband called curtilage, and as his father's of all legal interest in the premises tenant he had such right also on the in question, and left to him a mere lands which he cultivated, but with permission to enter for the purpose reference to the rest of the farm, inof visiting his children.

cluding the woodlands, he had a mere In Banks v. State (1906) Tex. license and was not entitled to carry 98 S. W. 242, it ap

a weapon thereon. peared that the defendant, found In Clark v. State (1887) 49 Ark. carrying a concealed weapon on

174, 4 S. W. 658, the same provision private road through a plantation, was construed not to apply to the

tenant and cultivated two carrying of a weapon on a common separate tracks of land on the planta- stairway. The evidence showed that tion connected by the road. The ques- the defendant occupied two rooms in tion was whether or not the defend- an office building as his law offices, ant was permitted by the exception that other persons had offices in the in the statute to carry a pistol habitu- building, that all of them used a ally between the two tracts of land. common stairway in order to reach the The court denied the right and said street, and that the defendant carried

Crim. Rep.

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was

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