State v. Hall
| Decision Date | 25 January 1886 |
| Citation | 20 Mo.App. 397 |
| Parties | STATE OF MISSOURI, Respondent, v. JAMES HALL, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Gentry Circuit Court, HON. CHAS. H. S. GOODMAN, Judge.
Reversed and remanded.
Statement of case by the court.
This case was tried in the circuit court upon an amended information, therein filed, charging that the defendant " on the nineteenth day of October, 1883, at the said county of Gentry, did then and there unlawfully carry concealed upon and about his person a certain deadly and dangerous weapon, to-wit: a pair of metal knucks."
The defendant filed his motion to quash the amended information " for the reason that the same did not charge the defendant with any offence known to the laws of this state in this, that it does not charge that the defendant carried concealed upon or about his person any weapon which he is by law prohibited from carrying." Said motion was overruled by the court.
Prior to the filing of the amended information in this case the defendant and one James Henderson each stood charged by separate informations with carrying a concealed weapon, viz a pistol. Prior to the trial of the case at bar, the case of the State v. Henderson was tried. At that trial, it appears that this defendant testified as a witness, but, whether for the state or Henderson, it does not expressly appear from the bill of exceptions. The theory of the state in that case was that Henderson had taken from his pocket a pistol and handed it to this defendant, Hall. In that case this defendant testified that Henderson did not hand or give him, the said Hall, any pistol; that he, the said Hall, had no pistol; and that Henderson had no pistol to his knowledge. Having so testified, this defendant was then, in that case, asked by the state what it was that Henderson did hand or give to him. To answer which question the defendant refused, " because the answer would criminate him, and would be used against him in another case then pending against him, and that the answer might be made the foundation of a criminal prosecution against him." The court compelled the defendant to answer the question.
At the trial of the case at bar the state offered in evidence the answer thus made by the defendant at the trial of the case of the State v. Henderson. Against the defendants's objection the court permitted the state to introduce such evidence.
It was thus shown that the defendant, in answer to said question, had said that " Henderson did not on the occasion referred to hand him a pistol, but did hand him a pair of brass knucks." Henderson was a witness for the state at the trial of the case at bar. There was no other evidence, however, so far as shown by the bill of exceptions, concerning the character of the " knucks," than that they were " brass knucks."
The defendant sought to have the court instruct the jury that, unless they found from the evidence that the " knucks" were a dangerous or deadly weapon, they would find the defendant not guilty. This the court refused to do, and in effect held that the " knucks" in proof were a dangerous weapon.
PATTON, CRANOR & PEERY, for the appellant.
I. The weapon described in the information, not being one mentioned in the statutes (sect. 1274, Rev. Stat., as amended by session acts, 1883, p. 76), no offence is charged, and that the intention of said statutes was to prohibit only the carrying of the weapons therein mentioned. Being a penal statute it will be strictly construed. Bish. Stat. Crimes, sects. 64, 120, 126 to 146, inclusive; Shaw v. Clark, 49 Mich. 384; St. Louis v. Laughlin, 49 Mo. 559; Henback v. State, 53 Ala. 523.
II. A witness cannot be compelled to answer a question, the answer to which would tend to criminate him, or could be made the foundation of a prosecution against him. And the rule is universal, that when extorted from him over his protest, it cannot afterwards be used in evidence against him on a subsequent trial for criminal offence. 2 Bish. Cr. Proced., sect. 803; Whart. Cr. Evid., sects. 463, 64, 665; Const. Mo. Art. 2, sect. 23; State v. Marshall, 36 Mo. 400; Rev. Stat., sect. 4015.
III. The court erred in the instructions given for the state, and in refusing those asked by defendant, and especially in modifying that numbered five by striking out the words " a dangerous and deadly weapon, " for that is a question of fact to be passed on by the jury.
No brief on file for the respondent.
The court properly overruled the motion to quash the information. Section 1274, Revised Statutes, as amended in 1883 (Laws of 1883, p. 76), is as follows: " If any person shall carry concealed, upon or about his person, any deadly or dangerous weapon, or shall go into any church or place where people have assembled for religious worship, or into any school room or place where people are assembled for educational, literary or social purposes, or to any election precinct on any election day, or into any court room during the sitting of court, or into any other public assemblage of persons met for any lawful purpose, other than for militia drill or meetings, called under the militia law of this state, having upon or about his person any kind of fire arms, bowie knife, dirk, dagger, slungshot, or other deadly weapon, or shall, in the presence of one or more persons, exhibit any such weapon in a rude, angry, or threatening manner, or shall have or carry any such weapon upon or about his person when intoxicated or under the influence of intoxicating drinks, or shall directly or indirectly sell or deliver, loan or barter to any minor any such weapon, without the consent of the parent or guardian of such minor, he shall, upon conviction, be punished by a fine of not less than twenty-five nor more," etc.
By this statute several distinct offences are created. The first offence, thus made, is the carrying by one, concealed upon or about his person, of any deadly or dangerous weapon. The general language used by the statute in defining that offence is not qualified or limited by the subsequent language of the statute as to particular weapons, because such subsequent language applies solely to the different offences created and defined by it, and not to the offence, already created and defined. The carrying by one, concealed upon or about his person, of any deadly or dangerous weapon whatever, whether mentioned in the subsequent part of the statute or not, or whether of the kinds so mentioned or not, is the offence made by the statute. It is not expressly stated in the bill of exceptions that the defendant here was a witness in the case of the State v. Henderson for Henderson. Such fact is,...
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