Notes on Use

The Fifth Element is not necessary for prosecutions of certain types of weapons (e.g., sawed off shotguns and rifles, 21 O.S. Supp. 1999, § 1289.18) whose possession is unlawful in itself. For prosecutions where other grounds (e.g., possession of a firearm by a convicted felon, 21 O.S. Supp. 1999, § 1283; possession of firearm on school property, 21 O.S. Supp. 1999, § 1280.1; carrying a concealed pistol without a handgun license, 21 O.S. Supp. 1999, § 1272) are required for possession of the firearm to be unlawful, these must be included in the Fifth Element.

For definitions of knowing and willful, see OUJI-CR 6-16, supra.

Committee Comments

The Oklahoma Self-Defense Act, 21 O.S. Supp. 1999, §§ 1290.1-1290.25, was adopted in 1995. It authorizes the issuance of licenses to carry concealed handguns for self-defense. Section 1290.25 provides that the "Oklahoma Self-Defense Act shall be liberally construed to carry out the constitutional right to bear arms for self-defense and self-protection." In addition to adopting the Oklahoma Self-Defense Act, the Legislature also extensively amended the Oklahoma Firearms Act of 1971, 21 O.S. Supp. 1999, §§ 1289.1-1289.17, in 1995.

The Oklahoma Court of Criminal Appeals held in Williams v. State, 1977 OK CR 119, ¶ 11, 565 P.2d 46, 49, overruled on other grounds, Chapple v. State, 1993 OK CR 38, ¶ 18, 866 P.2d 1213, 1217, Williams v. State, 1990 OK CR 39, ¶ 6, 794 P.2d 759, 763, and Lenion v. State, 1988 OK CR 230, ¶ 5, 763 P.2d 381, 383, that guilty intent and knowledge were essential elements of the crime of carrying a firearm after former conviction of a felony and that the terms "knowingly" and "willfully" should be explained in the jury instructions. See also Dear v. State, 1989 OK CR 18, ¶ 6, 773 P.2d 760, 761 (where the defendant offers evidence of lack of knowledge of a firearm and relies on it as a defense, an instruction covering it must be given to the jury if requested by the defendant).