
    The State of Ohio v. Johnson.
    (No. 33265
    Decided April 28, 1972.)
    
      Common Pleas Court of Montgomery County.
    
      Mr. John Slavens, assistant prosecuting attorney, for plaintiff.
    
      Mr. Paul Hunter, for defendant.
   Rice, J.

The captioned cause came on to be heard by the court sitting as the trier of fact, a jury having been waived by the defendant in open court, upon an indictment charging the defendant with carrying a concealed weapon. The defendant, while not disputing the operative facts of the state’s case, defended against the charge by claiming facts and circumstances constituting justification within the meaning of R. C. 2945.76.

Upon due consideration of the facts adduced at trial through the testimony of the witnesses and the law applicable to those facts, it is the opinion of the court that the state has proven, beyond a reasonable doubt, each and every essential element of the offense charged, whereas the defendant has failed to prove, by the required preponderance of the evidence, sufficient justification as would require the court to acquit under R. C. 2945.76. Therefore, the court enters a finding of guilty as charged against the defendant..

The defendant was arrested for carrying a concealed weapon at approximately 3:37 a. m. in the morning of July 7, 1971, at an “after-hours club” in Dayton, Ohio. There is no dispute that the weapon involved was concealed on the defendant’s person (right front pocket), loaded and in good working order.

The defendant is a sales supervisor for a beer distributing company whose job entails, in addition to the supervising of four salesmen, the occasional collection of various sums of money from customers to whom beer has been sold. If the money is collected during the time of day when his company is still open for business, the defendant takes the sum collected directly to the company. If, however, as is often the case, the money is collected after the close of the beer distributorship’s working day, the defendant customarily takes the money collected directly to his home where he places it in a home safe until the next morning when he turns it in to his employer.

On the night in question, the defendant had two money pick-ups to make, one from Ben Logan and the other from a local American Legion Post. He stopped by Ben Logan’s shortly after 8:00 p. m. and picked up slightly over $70.00 in cash and checks. He was scheduled to play in a baseball double header at 8:30, and realizing that he did not have sufficient time to take the proceeds to his home before the ballgame, even though his home was located directly next to the ballpark, the defendant proceeded to lock the money and checks in the glove compartment of his automobile while the games were played. The double header was over at approximately midnight. Since the defendant’s team was victorious, the losing team made arrangements to “buy the beer.” It was arranged that both teams would meet to drink the beer at the after-hours club on South Broadway, in Dayton, where the defendant’s arrest was to take place.

Meanwhile, the defendant still had one more money pick-up to make. At approximately 12:30 a. m., still garbed in his baseball uniform, he went to the American Legion Post and picked up some $200.00 in cash in payment for beer that had been delivered on that day. Instead of going home, as usual, to put this money and the money he had collected earlier from Ben Logan into his personal safe, the defendant, anxious to join his ballplaying friends and other acquaintances at the after-hours club, for drinking and dancing, placed the money collected from the American Legion Post into his automobile glove compartment, along with the money previously collected from Ben Logan’s.

Realizing that he was in a high-crime area, that beer salesmen had been robbed in this area before and that he, himself, was well known in the neighborhood as a beer sales supervisor who occasionally carried large sums of money about, the defendant decided he needed a weapon for protection. He then went back to Ben Logan’s and borrowed a weapon. Leaving the money behind, locked in the automobile glove compartment, the defendant went into the after-hours club, with the weapon concealed in his right front pocket.. It was this weapon that was found, concealed on his person, in the after-hours place at 3:37 a. m., some two and a half to three hours after his last pick-up of money. At the time of his arrest, the money collected that night was in the defendant’s automobile glove compartment, the automobile itself being parked outside of the after-hours establishment. The defendant himself had only some $6.00 on his person at the time of his arrest.

The defendant testified that he does not own a gun and, in fact, had never carried a gun on his person before that night.

ft. C. 2945.76 states, in pertinent part, as follows:

“Upon the trial of an indictment * * * for carrying a concealed weapon * * * shall acquit the defendant if it appears that he was at the time engaged in a lawful business, calling or employment, and that the circumstances in which he was placed justified a prudent man in carrying such weapon for the defense of his person, property. * * *”

In State v. Johnson (1952), 64 Ohio Law Abs. 425, the court held that B. C. 2945.76, does not require any connection or association between the lawful employment or pursuit and the circumstances of justification. Therefore, these elements are separate and distinct requirements and the defendant charged with carrying a concealed weapon is not entitled to claim justification unless he is engaged in a lawful pursuit.

Thus, in the instant case, the defendant need not show that the circumstances in which he was placed, which he claims constituted a justification for carrying the concealed weapon, were in any way related to his employment, although the facts as outlined above would tend to show a possible connection or association between the defendant’s employment and the claimed circumstances of justification.

Since there is no dispute that the weapon in question was knowingly concealed on the defendant’s person, loaded and in working order, and further since there is no dispute that the defendant was engaged in a lawful business at the time the weapon was concealed, the sole issue to be decided is whether the defendant has proven, by the required preponderance of the evidence, that the circumstances in which he was placed justified a prudent man in carrying such weapon for the defense of his person and property. To put the issue another way, was the defendant, in the circumstances as they existed at the time of his arrest, justified in carrying the weapon for the protection of his person or his property, the money in the glove compartment?

The court answers this question in the negative.

In the court’s opinion, the statutory language quoted above, under which the defendant attempts to justify his carrying of a concealed weapon, must be read and interpreted in the light of the facts as they existed — the circumstances in which the defendant was placed — at the time he was arrested for carrying the concealed weapon and not in light of the facts and circumstances as they existed some minutes or hours beforehand. The justification must be measured by the circumstances and by the facts as they existed at the time of the arrest — not at some time in the past (minutes, hours or days) when the defendant first began to carry the weapon concealed on or about his person. One cannot, simply because he may have been justified at the time he first carried the concealed weapon, claim justification at a later time, in a completely different factual context, when the facts and circumstances originally constituting justification no longer apply.

It appears to the court that the offense of carrying a conceaed weapon is a continuing one, continuing for however long the defendant carried the weapon concealed on or about his person. "Whether that person is justified in carrying a concealed weapon, however, would change from minute to minute, circumstance to circumstance, or situation to situation during that time.. In other words, one might be justified, within the meaning of the statute, in carrying a concealed weapon at a given point in time, because the circumstances in which he was then placed justified him as a prudent man in carrying such a weapon for the defense of his person or property, but such justification may not exist as a point in time minutes, hours or days removed from that point in time. The circumstances constituting justification may be continuing, i. e., a series of threats on one’s life, but, even so, the justification must be examined as of the time the carrying of the concealed weapon is sought to be justified, not in terms of any facts that might have existed when the weapon was first carried in the concealed fashion.

In the case at bar, without going into a lengthy dissertation on what a prudent man might have done or ought to have done in the factual situation presented herein (i. e. taken his money home to lock same in his safe, placed the gun in the car and left it there when he entered the bar, etc.), suffice it to say that, in the court’s opinion, while the defendant might have been justified in carrying a weapon on his person while driving in the automobile with the money locked in the glove compartment, the circumstances being such that a prudent man might well be justified in carrying the concealed weapon to protect his person and the money, the defendant lost that justification when he left the car and money behind and carried the gun, concealed on his person, into the after-hours club where he was drinking and dancing. Certainly, the circumstances as they existed at the time the defendant was in the after-hours club drinking and dancing, some two and a half to three hours after his last pick-up of money, were not such as to justify a prudent man, in the court’s opinion, in carrying the concealed weapon for the defense of his person and his property.

The defendant has, therefore, failed to sustain his burden of proof by the required preponderance of the evidence that he was justified in carrying the concealed weapon. On the other hand, the state has sustained its burden of proof of each and every essential element of the crime charged.

Therefore, the court enters a finding of guilty as charged against the defendant.

Judgment for plaintiff.  