TITLE 42 PENAL INSTITUTIONS

Section 5. Correctional Institutions of State and Counties, 42-5-1 through 42-5-125.

ARTICLE 3 CONDITIONS OF DETENTION GENERALLY

42-5-63. Unauthorized possession of weapon by inmate.

Every person confined in a penal institution or confined in any other facility under the jurisdiction of or subject to the authority of the board or who, while being conveyed to or from any facility, or while at any other location under such jurisdiction or authority, or while being conveyed to or from any such place, or while under the custody of officials, officers, or employees subject to such jurisdiction or authority, who, without authorization of the appropriate authorities, possesses or carries upon his person or has under his custody or control any instrument or weapon of the kind commonly known as a blackjack, slingshot, billy, sandclub, sandbag, or knuckles whether made from metal, thermoplastic, wood, or other similar material; or any pistol, revolver, or other firearm; or any explosive substance; or any dirk, dagger, switchblade, gravity knife, razor, or any other sharp instrument which is capable of such use as may endanger the safety or security of any of the facilities described in this subsection or of any person therein shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for a term of not less than one nor more than five years.
A person is deemed "confined in a penal institution" if he is confined in any of the penal institutions specified in subsection (a) of this Code section by order made pursuant to law, regardless of the purpose of the confinement and regardless of the validity of the order directing the confinement, until a judgment of a competent court setting aside the order becomes final so as to entitle the person to his immediate release.
A person is deemed "confined in" a penal institution even if, at the time of the offense, he is temporarily outside its walls or bounds for the purpose of confinement in a local place of confinement pending trial or for any other purpose for which an inmate may be allowed temporarily outside the walls or bounds of a penal institution; but an inmate who has been released on parole is not deemed "confined in" a penal institution for purposes of this Code section.

(Ga. L. 1973, p. 555, § 1; Ga. L. 1989, p. 14, § 42; Ga. L. 2008, p. 533, § 3/SB 366.)

Cross references.

- Penalty for possession of firearms by convicted felons, § 16-11-131.

JUDICIAL DECISIONS

Constitutionality.

- This section, which prohibits prison inmates from having deadly weapons, does not violate the equal protection clause of U.S. Const., amend. 14. Ridley v. State, 232 Ga. 646, 208 S.E.2d 466 (1974).

This section is not unconstitutionally vague or indefinite, and is consistent with due process requirements of both state and federal Constitutions, and is reasonable and necessary for the security and protection of correctional institutions and the people who reside and work in such institutions. Ridley v. State, 232 Ga. 646, 208 S.E.2d 466 (1974).

Making out a prima facie case.

- On indictment under this section, proof that the defendant, a convict, was searched while passing from one building to another, and a knife meeting the description of this section was found on the defendant's person, makes out a prima facie case. If the defendant claims authorized possession, the burden is on the defendant to offer evidence to that effect. Days v. State, 134 Ga. App. 585, 215 S.E.2d 520 (1975).

Subsection (b) of O.C.G.A. § 42-5-63 does not make production of an order an essential element of the crime which must be admitted into evidence at trial. Lehman v. State, 174 Ga. App. 767, 332 S.E.2d 17 (1985).

Offense not lesser included offense of aggravated assault.

- Offense of unauthorized possession of weapon by inmate is not a lesser included offense of aggravated assault. Weaver v. State, 176 Ga. App. 639, 337 S.E.2d 420 (1985).

Fact that weapon was found in defendant's locker, which was locked, with the defendant having the only key save a master key used by prison officials, was sufficient evidence to establish that the defendant had exclusive custody and control of the weapon. Black v. State, 179 Ga. App. 170, 345 S.E.2d 678 (1986).

Evidence was sufficient to sustain conviction.

- See Hood v. State, 192 Ga. App. 150, 384 S.E.2d 242 (1989); Dixon v. State, 192 Ga. App. 845, 386 S.E.2d 719 (1989).

Cited in Chaney v. State, 139 Ga. App. 211, 228 S.E.2d 199 (1976); Mathis v. State, 139 Ga. App. 322, 228 S.E.2d 358 (1976); Austin v. State, 146 Ga. App. 236, 246 S.E.2d 143 (1978); Raven v. State, 168 Ga. App. 398, 309 S.E.2d 656 (1983); Slater v. State, 185 Ga. App. 889, 366 S.E.2d 240 (1988).

RESEARCH REFERENCES

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 61, 62, 73.

ALR.

- Cane as a deadly weapon, 30 A.L.R. 815.

Sufficiency of evidence of possession in prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms or weapons, 43 A.L.R.4th 788.

What constitutes actual or constructive possession of unregistered or otherwise prohibited firearm in violation of 26 USCS § 5861, 133 A.L.R. Fed. 347.

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