I dissent, for the following reasons:
(1) The ordinance of the City of Boise, reading as follows:
"Every person not being a sheriff, deputy sheriff, constable or other police officer, who shall carry or wear within the corporate limits, any bowie knife, pistol or sword cane, sling shot, metallic knuckles, or other dangerous or deadly weapons, concealed, unless such persons be traveling or setting out on a journey, shall be deemed guilty of a misdemeanor. Such persons and no others shall be deemed travelers, within the meaning of this section, as may be actually engaged in making a journey at the time." (Boise City Code, 1936, sec. 4-1202, p. 148).
is in excess of the authority of the city of Boise and violates the constitution, Art. 1, sec. 11, and also runs counter to the provisions of sec. 17-3102, I.C.A.
(2) The record is complete and uncontradicted, to the effect that Hart was not deliberately or purposely violating any provision of the city charter or the state law. It is undisputed and in fact conceded, that in good faith he attempted to procure a permit from the sheriff, as provided by statute (sec. 17-3102, I.C.A.); and that he did everything the law required him to do, looking to the securing of such permit. It stands undisputed, that his life had been threatened by someone presumably interested in slot-machine operation in Boise City.
The right to defend one's person is not dependent upon a permit from anyone else but the one being attacked or threatened to be attacked. It would be utter folly to talk about requiring a man to get a permit to carry a gun concealed *Page 226 to defend himself, when he is suddenly attacked by a ruffian with threats to take his life. What he needs is the right to act then and, unless he has a gun or other weapon with which to offer equal persuasive peril, his right of self-defense would vanish and so would he.
(3) The record in this case is bristling with circumstances and evidence which convince me that the charge against defendant was pre-planned by some one or more of the persons who were in the "Gremlin's Roost" on the occasion when it is charged he (defendant) threatened an army officer with a blackjack. After making the charge, that he had threatened an army officer with a blackjack, the complaint was finally made against him for another offense, namely, carrying a concealedweapon. It is admitted that the discovery of the possession of the concealed weapon was made only after the arrest had beenmade on the charge of threatening to use a blackjack. It was done without authority and without consent of the party searched. Moreover, it is very significant, that upon the trial of this case in the district court no one of the army officers, supposed to have been threatened, was produced as a witness, although their headquarters (Gowen Field) is only a short distance beyond the Boise City limits.
After a careful examination of this entire record, I am convinced that the defendant has not had the fair and impartial trial which is guaranteed by the constitution.
Holden, J., authorizes me to say that he concurs in this dissent. *Page 227