Honorable Herbert J. Stelly, Sr.
Office of the Attorney GeneralOctober 7, 1982
1982 WL 44481 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 October 7, 1982
*1 Re: Concealed Weapons/Permit As Defense
*1 Honorable Herbert J. Stelly, Sr.
*1 Municipal Judge
*1 Post Office Box 1204
*1 Gulfport, Mississippi 39504
Dear Judge Stelly:
*1 Attorney General Bill Allain has received your letter of September 29, 1982, and has assigned it to me for reply. In your letter you state:
*1 “As Judge of the City Court of Long Beach, Mississippi, I have encountered a situation which does not seem to be too clearly expressed, either by statute or by law. The facts are as follows:
*1 “This young lady was recently arrested for carrying a concealed weapon at a time when she was a passenger in an automobile being driven by a person charged with intoxication and who had a prior felony record. The young lady had quite obviously consumed a substantial amount of alcohol and was quite inebriated at the time of her arrest.
*1 “This young lady now claims, and has produced, a permit to carrying this weapon. Apparently, this permit was obtained as a result of her claiming that her life had been threatened. At the time of the arrest, she was driving in an area removed from the vicinity or locality of the person who had made the threat to her. She claims that the permit constitutes an absolute defense to the charge of carrying a concealed weapon.
*1 “While I realize that the ultimate question as to whether or not at the time of the arrest the defendant, in good faith, was carying the weapon for her own safety, there is nevertheless the question of whether or not a permit such as the one in this case, constitutes an absolute defense to the charge of carrying a concealed weapon. I cannot believe that our legislators intended, through the enactment of these statutes, to make available to inebriated people such a dangerous instrumentality as a pistol.
*1 “Your opinion as to whether or not a permit constitutes an absolute defense to a charge of carrying a concealed weapon where the offense took place at a time when the subject was inebriated and further at a time when the defendant was in the company of another person also charged with drunken driving and with a prior felony record would be greatly appreciated.”
*1 The defense of having a permit to carrying a concealed weapon is created by 97-37-9(i), which says a person may show as a defense:
*1 “ . . . that at the time he was a company guard, bank guard, watchman, or other person enumerated in section 97-37-7, and was then actually engaged in the performance of his duties as such, and then held a valid permit from the sheriff, the commissioner of public safety, or a valid permit issued by the secretary of state prior to May 1, 1974, to carry the weapon; and the burden of proving either of said defenses shall be on the accused.”
*1 The persons enumerated by Section 97-37-7 of the Mississippi Code, Annotated, 1972, are duly constituted bank guards, company guards, watchmen, railroad special agents or duly authorized representatives, agents or employees of a patrol service, guard service, or a company engaged in the business of transporting money, securities or other valuables.
*2 From Section 97-37-9(i), the burden is placed on the defendant to establish that 1) she was at the time of the alleged offense one of the persons listed in Section 97-37-7 acting in the performance of her duties and 2) she held a valid permit. If the defendant meets this burden, by proving both of these elements, then she has established a statutory defense to the charge of carrying a concealed weapon.
*2 While there are no Mississippi cases on the “absoluteness” of this particular defense, there are cases concerning the defense of apprehension of an attack, Section 97-37-9(b), and it is clear that this defense is not an absolute one. See McGuirk v. State, 64 Miss. 209, 1 So. 103 (1887), wherein it was stated that this defense is not valid if the defendant was carrying the weapon for some other purpose and “the right reserved by statute to carry concealed weapons is co-extensive only with the conditions prescribed by the statute, and when those conditions cease, the right ceases also.” In addition, a good deal of the defense of apprehension of attack is factual in nature for the trier of fact to determine. Hurst v. State, 101 Miss. 402, 58 So. 206 (1912), Morgan v. Heidelberg, 246 Miss. 481, 150 So.2d 512 (1963).
*2 Trusting that the above will prove of value to you, I am
1982 WL 44481 (Miss.A.G.)
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