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[Cite as Jones v. State, 55 Ark. 186
Jones v. State.
Decided November 28, 1891.
Carrying weapon--"Upon his own
A landlord who carries a pistol upon premises owned by him but
wrongfully retained by a tenant after termination of the lease is not within the
exception in the statute against carrying weapons (Mansf. Dig.,
sec. 1907) in favor of one who carries a weapon "upon his own
APPEAL from Pulaski Circuit Court. Robert J. Lea, Judge.
W. J. Terry for appellant.
In 45 Ark., 536, and 49 id., 176, it was held
that only those who have an interest in the estate, or who are entitled to
exercise some control over it, are within the statutory exceptions. At common
law, six months' notice is required to terminate a tenancy by the year.
Gear, Land. & T., Sec. 32. After notice the holding over
creates a tenancy at sufferance, the lowest possible tenancy. Ib.,
sec. 40; Am. Law of Real Prop., 133. A tenant at sufferance
has no interest in the premises; he is entitled to no notice to quit.
Gear, L. & T., sec. 41; Lead. Cases, Am. Law of Real
Prop., pp. 133-5, 143. He cannot maintain an action of trespass quare
clausum for a peaceable entry; 50 Me., 325; nor for
forcible entry of his landlord, 83 Mass., 406; 4 Johns., 151. See also, 4 Jones (N.C.),
315; 115 Ill., 138; 12 Barb.,
483; 7 Halst., 99. The legislature used the word
"premises" in its popular sense, and meant it to apply to the house, homestead
and farm, even to the rented portions. Bish., St. Cr., sec. 101;
ib., sec. 227; ib., 235.
W. E. Atkinson, Attorney General, and
Chas. T. Coleman for appellee.
The only contention in this case is as to the meaning of the word
"premises." In 28 Ark., 100, it was used
as synonymous with "his own house." We think this was the intention of
the legislature. See 3 Heisk., 185-7; 28 Tex. App., 44. The tenant is the
owner of the premises during (p.187)the term. Wood, Land. & T., sec. 538;
12 Tex. App., 609; 21 Ohio St., 184.
The person actually enjoying the possession is the owner of the premises. 49 Ark., 176; 15 Tex. App., 23. The word
"premises" means land and tenements occupied as a habitation, or in the actual
possession of some person who has an estate therein. 28 Tex. App.,
44; 15 id., 23; 12
id., 609; 3 Heisk., 185; 45 Ark., 536; 49
Hughes, J. The appellant
was convicted of carrying a pistol as a concealed weapon, and appealed to this
court. His defense and contention are that he was within the exception to section 1907 of Mansfield's Digest, which provides that the
statute shall not be so construed as to prohibit any person from carrying any
weapon upon his own premises. Randall Jones was the tenant of the appellant,
lived in a house upon and cultivated land of the appellant for the year 1889.
His term expired the 1st day of January, 1890. He continued on the place until
about the 15th of that month, holding over. After an altercation between them,
the landlord, denying the tenant's right, proceeded to go into the yard around
the tenant's house. The tenant resisted his entrance, when the appellant
attempted to draw a pistol, which was seized by the tenant, who pushed appellant
out at the gate.
It is contended for appellant that he was on his own premises, within
the exception in the statute. Whatever may be the common law, the right of
forcible entry does not exist after the termination of a tenant's term, since
the passage of our statute of forcible entry and detainer. The remedy by this
statute is designed to protect the actual possession, whether rightful or
wrongful. The object of the statute is not to try the rights of property, but to
preserve the peace. Though this tenant's term had expired and the landlord owned
the property and was entitled to the possession of it, yet the tenant
had possession, and the premises--certainly around his house and within
his yard--were his while he (p.188)continued in
possession, and not the landlord's, within the meaning of the statute. The house
was his home, his place of occupation, his "castle" for the time being. But one
person could carry concealed weapons on the premises occupied by the tenant and
come within the exception contained in the statute, and that person was the
tenant and not the appellant. Several exceptions were taken to the exclusion of
evidence offered by appellant, and several instructions were refused to which
exceptions were taken, but we deem it unnecessary to notice these in detail, as
the opinion of the court indicates its view of the law. See Brumley v. State, 12 Tex. App., 609; Zallner v. State, 15 Tex. App., 23; Campbell v. State, 28 Tex. App., 44; Knight v. Knight, 3 Ill. App., 206.
Finding no error the judgment is affirmed.