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The basis of Open Carry - The LAW

MedicineMan

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I have read a bunch of the posts here, and it seems a MAJOR detail has escaped us....[/b]

[/b]

The Mississippi Constitution states.......[/b]

[/b]
Article 3, Section 12.[/b] The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned[/b], shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.

SOURCES: [/b]1817 art I § 23; 1832 art I § 23; 1869 art I § 15.
[/b]



That means the "concealed" weapons are the ONLY ones which are to be regulated.

All the other laws are "repugnant" to the State Constitution.



I really Believe that if we concentrate on this part, we can make headway with the others.



THIS is our FOUNDATION.

The basis of our argument.
 

DKSuddeth

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well, your major roadblock is going to be getting the state supreme court to overturn it's previous decision of what constitutes a concealed weapon. Currently, any gun that is concealed 'in part', which according to the courts decision would include hanging the gun around your neck with a string tied to the trigger guard, is not covered by the constitution.

This decision was handed down in the 70's. Has the makeup of the court changed? If so, you can take another case by getting charged and hopefully have a less biased court hand down a decision similar to Louisianas supreme court.
 

JT

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It seems MS law is in direct contradiction with the MS Constitution. From the MS Code 45-9-101. License to carry concealed pistol or revolver. Paragraph 18.

(18)
ecblank.gif


ecblank.gif

Nothing in this section shall be construed to require or allow the registration, documentation or providing of serial numbers with regard to any firearm. Further, nothing in this section shall be construed to allow the open and unconcealed carrying of any deadly weapon as described in Section 97-37-1, Mississippi Code of1972.
 

Seif5034

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swillden wrote:
Transparent holster?
that's actually not a bad idea.....we should contact holster makers to see if they'd be willing to make a line of MS-legal holsters
 

JT

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Transparent holsters are an interesting idea but the problem is that if a regular holster is considered "partially concealed" for the purpose of denying carrying without a permit then it wouldn't take very much more convoluted thought to find something "concealed" about a transparent holster. After all there is alwayspart of a gun you can't see. The problem is that the current laws and the interpretation of them are clearly at odds with the state constitution. What irks me is that rather than try to amend the constitution they simply ignore it and legislate and rule as they want things to be. That takes "the people" out of the governmnent and bypasses the checks and balances built into our system of government. Not much of a surprise since they do the same thing at the federal level.
 

Seif5034

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the thing is, if we OC'd with a transparent holster and were charged for it you could take it to court. I'm sure any Jury would agree that a transparent holster is not hiding anything or attempting to hide it.

You could also go on to explain that we've had to take these measures because the law now is contradicting and possibly they'd realize that (not all that likely but I can dream can't I?)
 

JT

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It's almost certain that someone would eventually be charged, even with a transparent holster. The question is, "Who wants to be the test case?" I have given some thought to writing a letter to the local sheriff, MS DPS,the AG, my stateRep,Senatorand MS Supreme Court (along with NRA, GOA, etc.) to ask them to explain the contradictions in their laws and rulings. I haven't been able to find the text MS Supreme Court ruling that defined "concealed" so I haven't started the letter yet. Still waiting on my CC permit also. I would like to have that in hand before I rock the boat. That way I've already gone through their process of being vetted as a good citizen.:)
 
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Medicine Man & JT, I have not overlooked the state constitution, have spent tons of time trying to get the AG's office to explain just how do you exercise that right without a permit? To date, no answer. Call Jim Dale, maybe by now he's formulated a lie to try to explain away article 3 sec 12. According to Jim Dale, there is no contradiction. You can exercise the "right" to bear arms, go get a permit !!! When I remind him a right needs no permit, he shuts up.
 

JT

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Mark, I read about your case with the Gonzales police with interest seeing as how I have made one trip to Cabelas there already and was planning more trips. Glad to hear you were able to come out on top. I also read about your dealings with the MS AG. I figure that the more people that ask the questions the more pressure can be brought to bear. I want to ask all of the people I mentioned so that they in turn are interested in the AG's answer. It irks me to have to get a permit to excercise a right but hopefully that can be changed. I would prefer not to have to go to the courts to try and have thecodes changed to match the constitution. They haven't shown much ability to read plain English.
 
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The code doesn't need to be changed, it needs to be struck down in the courts. If you or I violate the constitution, we go to jail. THEY violate the constitution, they get paid. There's got to be some "downside" to their behavior. They can read plain English quite well. It's just that they don't want to adhere to the supreme law of their state.
 

JT

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I understand what you're saying but I think the courts should be the last resort. After all it is the MS Supreme Court that supposedly gave theMS codethe convoluted definition of a holstered sidearm as being "partially concealed." Seems to me we always want the courts to fix what the legislators get wrong and then end up with decisions that reflect the personal opinions of the judges rather than the plain meaning of the law. The legislators tend to use the courts as a failsafe rather than try to ensure a law is constitutional from the outset. That practice needs to stop as much as the the executive branch needs to understand the laws they execute and enforce and the courts need to rule according to the plain meaning of the constitution. I think we are going to have to attack this at all three branches of government.
 
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The real problem is overlooked by most. If you or I violate the law, we suffer. If one of the elite violate the law, not only do they suffer nothing, they get paid to do it. Therein lies the problem. Just as a spoiled 8 year old needs to learn there's an immediate downside to his misbehavior, so do "public servants."
 

Malum Prohibitum

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DKSuddeth wrote:
well, your major roadblock is going to be getting the state supreme court to overturn it's previous decision of what constitutes a concealed weapon. Currently, any gun that is concealed 'in part', which according to the courts decision would include hanging the gun around your neck with a string tied to the trigger guard, is not covered by the constitution.

This decision was handed down in the 70's. Has the makeup of the court changed? If so, you can take another case by getting charged and hopefully have a less biased court hand down a decision similar to Louisianas supreme court.

Where is this case?

I looked all over for it. Would anybody mind posting the entire thing here for us to see?

Thanks.
 

DKSuddeth

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Chief Justice Lee's concurring opinion in L.M., Jr. v. State, supra, it would appear that a holstered handgun is "concealed in whole or in part" within the meaning of Miss. Code § 97-37-1.
 

Malum Prohibitum

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DKSuddeth wrote:
Chief Justice Lee's concurring opinion in L.M., Jr. v. State, supra, it would appear that a holstered handgun is "concealed in whole or in part" within the meaning of Miss. Code § 97-37-1.
Thanks. I'll see if I can get the text of the opinion posted here later. Do you have a citation? That will make it easier to find.
 

DKSuddeth

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I don't have any links or cite to the specific case opinion, but Mike posted this in another mississippi thread awhile back.
SUBJECT: OpenCarry.org Opinion 2007-1: May aperson holding a holding a License to Carry a Concealed Pistol or Revolver open carry a handgun in a holster in plain sight in Mississippi?

Short answer: Yes.

Discussion: Miss. Code §§ 97-37-1 & § 45-9-101 operate together to ban carriage ofa handgun "concealed in whole or in part" unless the carrier is inside a motor vehicle or possesses a License to Carry a Concealed Pistol or Revolver. The courts of Mississippi have held that a handgun in a holster, though openly carried, is concealed "in part" within the meaning of Miss. Code §§ 97-37-1 & § 45-9-101 or their processor statutes. E.g.,L.M., Jr. v. State, 600 So.2d 967, 971 (Miss. 1992) ("[A] revolver carried in a holster on a man's hip was a partially concealed weapon. Conceivably, carrying a revolver suspended from the neck by a leather throng could be partially concealing it."), Lee, J., concurring.

Next we must consider what effect, if any, does § 45-9-101(18) (establishing a program of issuance for a License to Carry a Concealed Pistol or Revolver but noting that "nothing in this section shall be construed to allow the open and unconcealed carrying of any deadly weapon as described in § 97-37-1, Mississippi Code of 1972") have upon the question of whether a person holding a License to Carry a Concealed Pistol or Revolver may lawfully carry a handgun in a holster.

The Miss. Code does not define the phrase "open and unconcealed carrying." From the teachings of Chief Justice Lee's concurring opinion in L.M., Jr. v. State, supra, it would appear that a holstered handgun is "concealed in whole or in part" within the meaning of Miss. Code § 97-37-1. Therefore, the Miss. Legislature's declaration that "nothing in this section shall be construed to allow the open and unconcealed carrying of any deadly weapon as described in § 97-37-1" would not reach a holstered handgun. Further, whatever is meant by the phrase "open and unconcealed carrying" in § 45-9-101(18), that section does not make it a crime to carry handguns openly or unconcealed.

If it is in fact possible to carry a handgun openly or unconcealed in Mississippi, Chief Justice Lee seems to think it be extremely difficult, and that "[c]onceivably, carrying a revolver suspended from the neck by a leather throng could be partially concealing it." L.M., Jr. v. State. Perhaps the legislature meant "open and unconcealed carrying" to be carrying the handgun openly in one's hand. Alternatively, perhaps the legislature perceived holstered handgun carry in plain sight to be "open and unconcealed" and did not wish the license to "authorize" such carry as a matter of state policy per se, even though as a general matter, such carry is not unlawful under § 97-37-1.

Conclusion: It is not a crime under § 97-37-1 to carry a handgun that is not "concealed in whole or in part." Further, a holstered handgun cannot be "concealed in part" and "open and unconcealed" at the same time. It would therefore appear that § 45-9-101(18) does not limit the authority of a person holding a License to Carry a Concealed Pistol or Revolver to carry an unconcealed handgun in a hip holster because either (1) the holster partially conceals the handgun, see L.M., Jr. v. State, meaning that the gun is not carried open and unconcealed," bringing the gun within the scope of the privilege provided by the License to Carry a Concealed Pistol or Revolver, or (2)a holstered handgun is not "concealed in whole or in part" such that a person needs a License to Carry a Concealed Pistol or Revolver to be exempt from § 97-37-1. Accordingly, aperson holding a License to Carry a Concealed Pistol or Revolver may open carry a handgun in a holster in plain sight.
 

Malum Prohibitum

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DKSuddeth wrote:
I don't have any links or cite to the specific case opinion, but Mike posted this in another mississippi thread awhile back.
SUBJECT: OpenCarry.org Opinion 2007-1:
What is an opencarry.org opinion? They issue opnions for each state?
 

DKSuddeth

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man, disregard that. I was in a hurry at work and didn't realize I pasted the wrong clip.

basically, the majority opinion read that because the statute says in whole or in part, theoretically a handgun would be concealed if it was even being carried by a string tied to the trigger guard.
 

Malum Prohibitum

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DKSuddeth wrote:
man, disregard that. I was in a hurry at work and didn't realize I pasted the wrong clip.

basically, the majority opinion read that because the statute says in whole or in part, theoretically a handgun would be concealed if it was even being carried by a string tied to the trigger guard.

L.M., Jr. v. State, 600 So.2d 967 (Miss. 1992).

L.M., S.T. and D.S., minors, appeal from an adjudication of delinquency for carrying concealed weapons in violation of Miss.Code Ann. § 97-37-1 (1972). The Hancock County Youth Court ordered L.M. and S.T. to be committed to Oakley Training School, and placed D.S. on probation. We affirm the findings of the Youth Court regarding L.M., but find there is insufficient evidence to uphold the court's determination regarding D.S. and S.T.

Facts

At approximately 11:00 p.m. on July 9, 1988, Officer David Sellier was alerted by his sergeant that six black males, traveling in a blue Ford Fairmont with a Harrison County tag, were reportedly on their way to "shoot up" a beach party in Bay St. Louis. Shortly thereafter, he received a report of a shooting on the beach. When he arrived, he met several black juveniles who claimed someone had shot at them. After talking with the juveniles, he began to patrol the area and noticed a speeding blue Ford Fairmont with Harrison County plates. He then called for back-up support and "initiated felony stop procedures." Officer Sellier first searched the driver. After the other police officers arrived, the five passengers were searched. A vehicle search then resulted in the confiscation of four weapons secured under the hood. The police arrested all six youths and took them to the Hancock County Sheriff's Office.

During the trial, Charles Dedeaux, the driver of the car on the night in question, took the stand. According to Dedeaux's sworn testimony, he, L.M. and another minor had picked up the guns in North Gulfport. Neither S.T. nor D.S. was present *969 when they loaded the guns under the hood of the car. However, Dedeaux also stated that everyone in the car knew the guns were there because he discussed selling them on the drive from Gulfport to Waveland.

After the State rested, defense counsel moved for dismissal under the "traveling" or "taking a trip" defense as set forth in Miss.Code Ann. § 97-37-9(b) (1972). The judge ruled as follows:

Overruled as to that because I think it's the clear intention of subsection a [sic] that they would be on a journey and traveling from the distance from Pass Christian and Waveland is probably not more than four or five miles and I certainly don't think that the statute has the intention of just going from one little town to another so I overrule that.

LAW

I.

This Court recently articulated the scope of review in youth court cases as follows:

Of course, in reviewing the evidence we do not proceed de novo. Rather, our scope of review is limited. We consider all of the evidence before the Youth Court in the light most favorable to the State. If the evidence so considered is opposed to the adjudication of the Youth Court with such force that reasonable men could not have found as the Youth Court did beyond a reasonable doubt, we must reverse. On the other hand, if there is substantial evidence in the record supporting the adjudication of the Youth Court, evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, the Youth Court might reasonably have ruled as it did, we must affirm.

In re S.B., 566 So.2d 1276 (Miss.1990) (citations omitted).

[1] As we indicated in In Interest of T.D.B., 446 So.2d 598, 599 (Miss.1984), the Youth Court Judge, as the trier of fact, has "great authority and wide discretion ... in delinquency cases and disposition orders." He must, however, find beyond a reasonable doubt that the minor is delinquent as charged. Miss.Code Ann. § 43-21-561(1).

[2] To be found delinquent, a minor must have committed a delinquent act, that is one "which if committed by an adult, is designated as a crime under state or federal law, or municipal or county ordinance other than offenses punishable by life imprisonment." Miss.Code Ann. § 43-21-105(j). On July 21, 1988, the Hancock County Prosecutor filed petitions against sixteen-year-old D.S., seventeen-year-old S.T. and seventeen-year-old L.M. The petitions alleged identical violations as follows:

COUNT 1) that said child did in Hancock County, MS, on or about the 9th day of July, 1988, violate section 97-37-1 of the MS Code of 1972, Annotated, as he did unlawfully and wilfully carry concealed weapons, to-wit:

one R.G. INDUSTRIES .22 caliber revolver;

one R.G. INDUSTRIES .38 caliber revolver;

one 30-30 caliber Marlin lever action rifle; and

one .22 caliber sawed-off automatic rifle;

the same being concealed under the hood of a car.

COUNT 2) that said child did in Hancock County, MS, on or about the 9th day of July, 1988, violate section 97-35-15 of the MS Code of 1972, Annotated, as he did unlawfully and wilfully disturb the public peace by seeking to intimidate other persons, to-wit:

by discharging a firearm over the heads of a group of people on the beach.

At the hearing and pursuant to the State's motion, the Youth Court Judge dismissed Count 2 against the three youths. As to Count 1, all three denied the allegations of the petition.

[3] Miss.Code Ann. § 97-37-1 (1972) prohibits any person from carrying a concealed*970 weapon.FN1 We consider first whether transporting a weapon under the hood of a car constitutes "carrying" under the statute. The appellants contend that it was not the intent of the legislature, in its passage of Miss.Code Ann. § 97-37-1 (1972), to require that all transportation of weapons be carried out in the open. Rather, the intent of the statute is to prohibit a seemingly harmless individual from having a deadly weapon within his reach.

FN1. Miss.Code Ann. § 97-37-1(2) has been changed effective July 1, 1991, to read as follows:It shall not be a violation of this section for any person over the age of eighteen (18) years to carry a firearm or deadly weapon concealed in whole or in part within the confines of his own home or his place of business, or any real property associated with his home or business or within any motor vehicle.



(emphasis added)

In Clark v. City of Jackson, 155 Miss. 668, 124 So. 807 (1929) this Court addressed the issue of "carrying" under the statute. In Clark, the appellant appealed his conviction of carrying a concealed pistol. Clark, 155 Miss. at 669, 124 So. at 807. Clark had allegedly attempted to conceal a weapon by covering it with his feet on the floorboard of a car. Id. at 671, 124 So. at 807. This Court, in affirming Clark's conviction, stated as follows:

Whether appellant is guilty of carrying the pistol concealed depends on the determination of the question of what amounts to a "carrying." It will be observed that the statute does not define the crime as the carrying of the weapon concealed on the person; it is the carrying of it concealed in whole or in part that is denounced as a crime. The question is whether appellant was carrying the pistol, in the sense of the statute. It was lying in the foot of the car, with both of his feet on it in an effort to conceal it; his person was therefore in contact with the pistol, which was easily accessible to appellant-he had only to bend his body in order to reach down and take the pistol in his hand. The carrying is within the prohibition of the statute, where the weapon is so carried that it is readily accessible and available for use.

Id. at 672, 124 So. at 808 (citation omitted) (emphasis added).

The State argues that this Court did not define "carrying" in Clark, but instead reached the conclusion that when the weapon is readily available, it is certainly "carrying." The State cites in support of its position both Patterson v. State, 251 Miss. 565, 170 So.2d 635 (1965) (weapon found under front seat) and Morgan v. Town of Heidelberg, 246 Miss. 481, 150 So.2d 512 (Miss.1963) (weapon found under appellant's leg in vehicle). Patterson and Morgan are easily distinguishable from the case sub judice because the weapons involved in those cases were readily accessible and available for use.

II.

[4] Next, appellants assert the "traveling" or "taking a trip" defense set forth in Miss.Code Ann. § 97-37-9(b), wherein any person charged with a violation of § 97-37-1 may show as a defense "that he was traveling and was not a tramp, or was setting out on a journey and was not a tramp."

In Morgan v. Town of Heidelberg, 246 Miss. 481, 491, 150 So.2d 512, 516 (1963) this Court defined "traveling" as "[t]he traveling or setting out on a journey, intended by the statute to be an excuse for carrying a concealed weapon, means a travel of such distance as to take one beyond the circle of his friends and acquaintances." This Court specifically addressed Miss.Code Ann. § 97-37-9(b) in Patterson v. State, 251 Miss. 565, 572, 170 So.2d 635, 638 (1965). It held that:

[T]he proof is sufficient to show that this defendant was traveling and was not a tramp, but had set out on a journey which did take him beyond the scope of his friends, and that his journey was a legitimate one in which he had a vital interest, related solely to his business, and he was not violating any statutes relating to the carrying of a concealed weapon.

*971 Further, in Joseph v. State, 299 So.2d 211, 213 (Miss.1974), this Court determined that the statute authorized the appellant to carry a concealed weapon because his employment as a disc jockey required him to travel 85 miles between two towns, carry money and transport musical equipment.

Appellants contend that the "traveling" or "taking a trip" defense is applicable to them since they were not residents of Hancock County where they were apprehended. The State argues that merely leaving one's county of domicile is not enough to establish that they were outside their circle of friends.

Patterson and Joseph demonstrate that more is needed to establish the "traveling" defense than merely leaving one county and entering another. Accordingly, the appellants' assertion that they were "traveling" or "taking a trip" falls short of establishing that defense.

III.

[5] [6] Finally, the appellants assert that there was insufficient evidence to establish that they knew that the weapons were in the vehicle. They contend that Dedeaux's testimony offers little to implicate D.S. and S.T. because the guns were already in place under the hood when he picked them up. Appellants also argue that although Dedeaux's testimony did implicate L.M., it was so substantially impeached that no fair-minded trier of fact could be convinced beyond a reasonable doubt of his guilt.

[7] Considering all of the evidence in the light most favorable to the State, we hold that there is substantial evidence demonstrating that L.M. knew of the existence and was in constructive possession or control of the weapons in the vehicle. However, with regard to D.S. and S.T., we are reminded that "[g]uilt by association is neither a recognized nor tolerable concept in our criminal law." Davis v. State, 586 So.2d 817, 821 (Miss.1991); Pryor v. State, 239 So.2d 911, 912 (Miss.1970); Matula v. State, 220 So.2d 833, 836 (Miss.1969). The State failed to adduce adequate evidence to show that D.S. and S.T. had knowledge, possession or control of the guns. Merely riding in the vehicle where the guns were stashed falls short of even constructive possession. Davis, 586 So.2d at 821. Accordingly, we affirm the Youth Court's adjudication of L.M. and reverse and render with regard to S.T. and D.S.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.



ROY NOBLE LEE, C.J., HAWKINS, P.J., and PRATHER and PITTMAN, JJ., concur.

DAN M. LEE, P.J., concurs in results only.

ROY NOBLE LEE, C.J., files separate concurring opinion, joined by DAN M. LEE, P.J.

BANKS, J., filed separate written dissent, joined by ROBERTSON AND SULLIVAN, JJ.





ROY NOBLE LEE, Chief Justice, concurring:

I concur with the majority opinion, but I think more should be said about carrying concealed weapons.

One of the first cases I undertook as a young lawyer was the defense of a man charged with carrying a concealed weapon. I thought his defense would be simple and easy until I learned what the statute meant. To my amazement, I discovered that carrying a concealed weapon in whole or in part even meant that a revolver carried in a holster on a man's hip was a partially concealed weapon, riding a horse with a saddle holster and revolver under a person's leg violated the statute; and that covering a weapon with feet, hands, or clothing meant that the weapon was concealed under the interpretation of the statute. Conceivably, carrying a revolver suspended from the neck by a leather throng could be partially concealing it. (One Western gunfighter used that method.)

The reasons for the strict interpretation of the statute were that many years ago people carried firearms for their protection-usually partially concealed as in holsters. People were also prone to settle *972 their differences by fist fights and it was fairly common to see such incidents occur in public places. If a person was prone to provoke a fight with a seemingly unarmed man, he could easily be killed or injured in the event his adversary was carrying a concealed weapon. If the weapon had been visible probably no altercation would have occurred.

I do not believe that it was the intention of the statute to include "carrying" a concealed weapon as having the weapon in the trunk of an automobile or buggy, in the glove compartment or console of an automobile or the compartment of a surrey or in a valise, suitcase or traveling bag (not airplanes).

I further agree that § 97-37-9(b) exempting the traveler from the prohibition of carrying a concealed weapon "outside the circle of his friends" is a laudable provision. See Patterson v. State, 251 Miss. 565, 170 So.2d 635 (1965). It is common knowledge that, under some such circumstances and in such situations, people must have protection and their "equalizer" with them. This provision and exemption have been a part of our law for more than one hundred years and it is still vibrant and strong today. In olden day, the statute meant a travel of some distance to take one beyond the circle of his friends and acquaintances, because they usually knew everybody within fifty miles. See McGuirk v. State, 64 Miss. 209, 1 So. 103 (1887); Morgan v. Town of Heidelberg, 246 Miss. 481, 150 So.2d 512 (1963). I note, without advocating an abrogation of the rule, that in these modern times when people reside in cities, with thousands of inhabitants, they frequently do not know their neighbors in the next block and certainly not in the next neighborhoods or across the city. Within two or three blocks, they are outside the circle of their friends.



DAN M. LEE, P.J., joins this opinion.





BANKS, Justice, dissenting:

Our concealed weapons statute is directed at weapons which are readily accessible to the person charged with "carrying" them. Clark v. City of Jackson, 155 Miss. 668, 124 So. 807 (1929). Here the weapons in question were under the hood of an automobile. Clearly, they were not accessible within the meaning of our law. While we have no cases on point, other courts have made the common sense finding that a weapon under a hood is not readily accessible. People v. Cook, 46 Ill.App.3d 511, 5 Ill.Dec. 81, 361 N.E.2d 81 (1977). The majority agrees and distinguishes cases where the weapons were found in the passenger compartment of vehicles. Ante, p. 970. It follows that L.M. cannot be found delinquent based on that charge.

The majority's conclusion that there was sufficient evidence to support a finding that L.M. was in the possession and control of the weapons does nothing for the delinquency finding. L.M. was not charged with illegal possession of firearms. Indeed, and perhaps unfortunately, it is not illegal for a minor to possess handguns or any other firearm in this state. Nor was such a charge lodged. While it is a federal offense to possess certain "sawed-off" weapons, no charge was made pursuant to that statute and no attempt was made to prove such a violation.

Part III of the majority opinion and its disposition with regard to L.M. then is wholly at odds with Part I and the law. Because our laws are inadequate to deal with the realities of modern society we must, if we are to be true to our oaths, hold that no act of delinquency was committed and reverse and render as to all charges. Because we do not, I dissent.



ROBERTSON and SULLIVAN, JJ., join this dissent.
 
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