State v. Morris

• Decision Date: 04 January 1915
• Docket Number: No. 18335.,18335.
• Citation: 172 S.W. 603
• Parties: STATE v. MORRIS.
• Court: Missouri Supreme Court

172 S.W. 603

STATE v. MORRIS.

No. 18335.

Supreme Court of Missouri, Division No. 2.

January 4, 1915.

1. WEAPONS (§ 14) — "DEADLY WEAPON" — "FIREARM."

A pistol is a "deadly weapon," within the general term "firearms," within Rev. St. 1909, § 4496, punishing any person exhibiting in a rude, angry, or threatening manner any kind of "firearms," though the pistol is not loaded, and is in such a condition, if loaded, that it cannot be discharged.

2. CRIMINAL LAW (§ 48) — INSANITY — TIME OF OFFENSE.

Where accused relies on insanity, his mental condition at the time of the offense is the material matter to be proved, and not the cause of his insanity, or the time when he became insane.

3. WEAPONS (§ 14) — EXHIBITING WEAPONS IN RUDE, ANGRY, OR THREATENING MANNER — JUSTIFICATION.

Where accused, armed with a pistol, sought prosecutor to collect a debt, and they engaged in a wordy wrangle, the statement of prosecutor that accused was a young man and did not need the money, while prosecutor was an old man and needed it, was no defense to the charge of exhibiting a pistol in a rude, angry, and threatening manner.

4. CRIMINAL LAW (§ 354) — INSANITY — EVIDENCE — ADMISSIBILITY.

Accused, relying on temporary insanity, may not show his mental condition for three years preceding the offense and the evening thereafter.

5. CRIMINAL LAW (§ 456) — INSANITY — EVIDENCE — ADMISSIBILITY.

A question asked a nonexpert witness as to the effect on accused of a drug calls for a conclusion on the question of mental condition of accused, relying on the defense of insanity, and is properly excluded.

6. CRIMINAL LAW (§ 1170) — HARMLESS ERROR — ERRONEOUS EXCLUSION OF EVIDENCE.

Where a physician testified generally to the effect of a drug on the human system, error in refusing to permit a nonexpert witness to testify as to the effect of the drug on accused, relying on insanity, was not prejudicial.

7. CRIMINAL LAW (§ 465) — INSANITY — EVIDENCE — ADMISSIBILITY.

A nonexpert witness may not express his opinion on the sanity or insanity of accused, without testifying to facts within his knowledge, which will support his conclusion.

8. WEAPONS (§ 14) — EXHIBITING WEAPONS — DEFENSES.

That accused, brandishing a pistol in a threatening manner, in violation of Rev. St. 1909, § 4496, merely intended to bluff or intimidate prosecutor, was immaterial, for the offense was determined by what he did, without reference to his undisclosed intention.

9. CRIMINAL LAW (§ 761) — INSTRUCTIONS — ASSUMPTION OF FACTS — "INSANITY."

An instruction that excitement, passion, and angry feelings or revenge, produced by motives of anger, hatred, disappointment, or revenge, is not "insanity," and that the law holds a wrongdoer under such conditions responsible, and the jury may not excuse, justify, or mitigate the act, is not objectionable as assuming the sanity of accused, relying on insanity, but defines insanity.

10. CRIMINAL LAW (§ 48) — INSANITY — TEMPORARY INSANITY.

Temporary insanity, which is the result of the immediate use of a drug, does not destroy criminal responsibility.

11. CRIMINAL LAW (§ 773) — INSANITY — EVIDENCE — INSTRUCTIONS.

Where the testimony on the issue of insanity of accused was confined almost wholly to vague statements of nonexpert witnesses, as to their conclusions as to accused's condition at periods prior to the crime, unsupported by any facts on which the conclusions were based, and the only physician who testified repeatedly stated that he did not know the mental condition of accused at the time of the crime, an instruction that if accused at the time of the crime labored under a fit of temporary insanity, which was the result of the immediate use of a drug, he was liable, but, if he was insane, he was not liable, though the insanity might have been caused by taking the drug, was favorable to accused.

12. CRIMINAL LAW (§ 1115) — EXAMINATION OF JURORS — IMPROPER REMARKS — BILL OF EXCEPTIONS.

That the prosecuting attorney made prejudicial remarks on the voir dire examination of jurors cannot be considered, unless the examination is preserved in the bill of exceptions.

13. CRIMINAL LAW (§ 1048) — EXCEPTIONS — BILL OF EXCEPTIONS.

Errors occurring during the trial cannot be compiled thereafter and inserted seriatim at the close of the bill of exceptions, regardless of the time of their occurrence or the circumstances surrounding them.

14. CRIMINAL LAW (§ 878) — VERDICT — SUFFICIENCY.

Where an information charged in the first count a felonious assault, and in the second exhibiting a pistol in a rude, angry, and threatening manner, a verdict finding accused guilty as charged in the second count, and assessing his punishment, was not fatally defective for omitting the words "exhibiting a pistol in a rude, angry, and threatening manner," for the court, on the jury returning the verdict, could insert therein the quoted words.

15. INDICTMENT AND INFORMATION (§ 132) — COUNTS IN INFORMATION — ELECTION.

Where an information charges in one count a felonious assault, and in another exhibiting a pistol in a rude, angry, and threatening manner, it was not error to refuse to require the state to elect on which count it would stand at the close of the evidence.

16. CRIMINAL LAW (§ 1167) — APPEAL — QUESTIONS REVIEWABLE.

Where accused was convicted on the second count of an information, charging exhibiting a pistol in a rude, angry, and threatening manner, rulings on the first count, charging felonious assault, were immaterial.

Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.

Ferd Morris was convicted of crime, and he appeals. Affirmed.

Ward & Collins, of Caruthersville, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

WALKER, J.

Appellant was charged in an information in two counts: The first, a felonious assault; and, the second, exhibiting a pistol in a rude, angry, and threatening manner. Upon a trial he was convicted under the second count, which was drawn upon section 4496, R. S. 1909, sentenced to two years' imprisonment in the penitentiary, appealed to this court, gave the required bail bond, and was granted a supersedeas.

Appellant urges as grounds for reversal: (1) The refusal of his application for continuance; (2) errors in the exclusion of proper and admission of improper testimony; (3) refusal to give proper and the giving of erroneous instructions; (4) improper voir dire examination of jurors; (5) prejudicial remarks of prosecuting attorney in his argument to the jury; (6) modification of the verdict; and (7) refusing to require the state to elect, at the close of the testimony, upon which count it would stand.

I. The trial court was authorized in overruling appellant's motion for a continuance on account of the absence of the witness Meattie. The testimony it was alleged this witness would give was irrelevant and immaterial. A pistol is per se by statutory designation (section 4496, supra) a deadly weapon in being included in the general term "firearms," and its exhibition in the manner charged constituted the offense defined by the statute. The offenses being kindred in their nature, the construction placed on the statute, prohibiting the carrying of concealed weapons, is applicable to the offense of displaying them in a rude, angry, and threatening manner. In prosecutions under the first offense named, the question as to whether or not a pistol was loaded, and what defendant's intentions were in having it in his possession, are immaterial. Ridenour v. State, 65 Ind. 411; Gamblin v. State, 45 Miss. 658. The same rule is applicable to prosecutions under the second offense or that under review, for it is held to be no defense that the weapon brandished or unlawfully displayed was not in an efficient condition; for example, where a pistol was in such a state that it could not be discharged. Williams v. State, 61 Ga. 417, 34 Am. Rep. 102.

To further illustrate the fact that it is the unlawful use of the weapon, under the conditions named in the statute, which constitutes the offense, it is held in another jurisdiction that if the weapon is within the class against which the prohibition is directed, although it may be shown that it is temporarily or permanently disabled, if it retains the appearance and characteristics of (for example) a pistol, it is none the less a firearm, within the meaning of the statute. Atwood v. State, 53 Ala. 508. In a later case, which affirmed the Atwood Case, supra, the Supreme Court of Alabama sustained a charge for carrying concealed weapons, although it was shown that the pistol charged to have been carried had the handle and mainspring broken, and that it could not be discharged in the ordinary way. Redus v. State, 82 Ala. 53, 2 South. 713. So in West Virginia it was held that, although a revolver carried concealed on the person would not explode a cartridge, the offense was nevertheless held to be made out by proving the carrying and concealment. State v. Tapit, 52 W. Va. 473, 44 S. E. 231. And in Massachusets, under a charge for unlawfully carrying firearms, a Springfield rifle, which had been so altered that it would not discharge a missile with gunpowder or other explosive, was held to be a firearm, within the prohibition of the statute, sufficient to justify a finding of guilty. Commonwealth v. Murphy, 166 Mass. 171, 44 N. E. 138, 32 L. R. A. 606.

The application for a continuance also alleged that, if present, the witness would testify as to appellant's unsound mental condition prior to the offense and the causes thereof. The testimony as to appellant's mental condition at the time of the commission of the offense did not depend for its relevancy or probative force on the causes which may have brought it about. Great latitude is allowed in proving the mental condition of an accused, when irresponsibility for the act charged is interposed as a defense. But appellant's mental condition, at the time of the...