State v. Conley

• Decision Date: 04 December 1919
• Citation: 217 S.W. 29,280 Mo. 21
• Parties: THE STATE v. J. N. CONLEY, Appellant
• Court: Missouri Supreme Court

217 S.W. 29

280 Mo. 21

THE STATE v. J. N. CONLEY, Appellant

Supreme Court of Missouri, Second Division

December 4, 1919

Appeal form Adair Circuit Court. -- Hon. James A. Cooley, Judge.

Affirmed.

S. N Mills for appellant.

(1) If the defendant did not have the pistol about his person especially if he did not have it concealed, he could not be guilty as charged. Sec. 4496, R. S. 1909; State v Hale, 170 Mo.App. 143; 2 Whartons Criminal Law, sec. 1557; Bidentur v. State, 65 Ind. 411; Smith v. State, 69 Ind. 140. (2) The court erred in that he did not instruct on all the law of the case. The court failed to instruct on the question of the intent with which the pistol was carried. Intent is the gist of the crime, and there was no instruction on this point, and if the defendant did not intend to carry the revolver concealed he is not guilty, and the court should have so instructed the jury. State v. Murry, 39 Mo.App. 127; State v. Hale, 70 Mo.App. 143; 10 Cyc. 863, 864; State v. Carter, 259 Mo. 349. (3) The court erred in giving the State's instruction Number 2. This instruction is erroneous, in this that it tells the jury that if they find the revolving pistol was in the seat of defendant's wagon, and concealed from view it was a concealed weapon about his person, within the meaning of the law. 10 Cyc. 863; 8 Cyc. 543.

Frank N. McAllister, Attorney-General, and Thos. J. Cole for respondent.

(1) Appellant's instruction 2 was properly refused, because it assumes that if the defendant had the weapon concealed in the seat of his wagon it was not concealed on or about his person, although defendant was sitting in the wagon. Wagner v. State, 188 S.W. 1001; Mayfield v. State, 75 Tex. Cr. 103; DeFriend v. State, 69 Tex. Cr. 329; Kendall v. State, 118 Tenn. 156; Leonard v. State, 56 Tex. Cr. 84; Hill v. State, 50 Tex. Cr. 619; 40 Cyc. 856. (2) Appellant's sixth allegation in his motion for a new trial that the court failed to instruct the jury that they must find that defendant intended to conceal the weapon before they could find him guilty must be disallowed for the reason that appellant requested no such instruction, nor did he, at the time the instructions were given, save an exception to the failure of the court to instruct on all of the law of the case. State v. Cook, 207 S.W. 833; State v. Pfeifer, 267 Mo. 23; Sec. 5245, R. S. 1909.

WALKER, J. Williams, J., concurs in result.

OPINION

WALKER, J.

Appellant was charged by information in the Circuit Court of Adair County with carrying concealed weapons in violation of Section 4496, Revised Statutes 1909. Upon a trial he was convicted and sentenced to pay a fine of one hundred dollars. From this judgment he appeals.

Appellant was a huckster or vender of vegetables in the City of Kirksville. While plying his vocation he was approached in a threatening manner by one Kephart. Appellant rose from the seat on the wagon on which he had been sitting and drawing a pistol, either from the seat or his pocket, he shot Kephart in one of his legs.

The refusal of trial court to give instruction numbered 2 asked by appellant is assigned as error. This instruction is as follows:

"The court instructs the jury that if you find and believe from all the evidence that the defendant had the revolving pistol in the seat of his wagon at the time in question, and so carried it, and did not have the pistol concealed on or about his person, then you must find the defendant not guilty."

This instruction was properly refused because it failed to hypothecate the fact as to the appellant's guilt if the evidence showed that the pistol was concealed on the seat of the wagon and limits the jury's finding to a concealment "on or about the person" of the appellant. The words "on or about" as thus used are clearly intended to be so limited by the instruction. This is an incorrect statement of the law. Under the statute (Sec. 4496, R. S. 1909) defining this offense, the concealment, although not actually on the person, may be in such close proximity to the accused as to be within his easy reach and convenient control; and upon proof of this fact the offense is made out. [State v. McManus, 89 N.C. 555.]

However, if the essential condition omitted from this instruction appeared therein, no error can be predicated upon its refusal because of the giving of the following instruction, to-wit:

"The court instructs the jury that it is not necessary that the revolving pistol should be in the defendant's pocket of his clothing to constitute it a concealed weapon about his person. If you find and believe from the evidence beyond a reasonable doubt that the revolving pistol was in the pocket of the defendant's clothing and thereby concealed from view, or if you find and believe from the evidence beyond a reasonable doubt that the revolving pistol was not in the pocket of defendant's clothing but was in the seat of his wagon and concealed from view so that it could not be seen, then in either case such weapon was a concealed weapon about his person within the meaning of the law."

This instruction correctly declares the law in that it contains all the essentials necessary for the jury's consideration in determining as to the guilt or innocence of appellant under the evidence. The refused instruction does not do this but attempts by its terms to limit the words "on or about his person" to a concealment by the accused of the weapon in his wearing apparel. The fact of concealment constituting the gravamen of the offense, a construction which would limit the law as contended by appellant would defeat its purpose and render convictions in cases of this character difficult if not impossible.

The rule announced in State v. Carter, 259 Mo. 349, 168 S.W. 679, that when there is a contested...