State v. Arnett

• Decision Date: 26 May 1914
• Docket Number: No. 18068.,18068.
• Citation: 258 Mo. 253,167 S.W. 526
• Parties: STATE v. ARNETT.
• Court: Missouri Supreme Court

167 S.W. 526

258 Mo. 253

STATE v. ARNETT.

No. 18068.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. WEAPONS (§ 17)—UNLAWFUL EXHIBITION OF—INSTRUCTIONS—RIGHT OF SELF-DEFENSE.

Substantial evidence of self-defense in a prosecution for unlawfully exhibiting a weapon, even though coming from the defendant alone, entitles him to an instruction upon that theory.

2. WEAPONS (§ 17)—OFFENSES — INSTRUCTIONS —SELF-DEFENSE—SUFFICIENCY OF EVIDENCE.

In a prosecution for unlawfully exhibiting a weapon in an angry, threatening manner, testimony by the defendant that the prosecuting witness had threatened to expel him from the place, that defendant then picked up a revolver, and when prosecuting witness approached him with a drawn knife, and cut him across the hand, and thereafter the defendant struck the witness with the revolver, which was accidentally discharged thereby, and testimony of other witnesses that a knife was found at the place of the altercation, is sufficient to require an instruction on the right of self-defense, if such right is a defense to such a prosecution.

3. WEAPONS (§ 14)—OFFENSES—EXHIBITING WEAPON—SELF-DEFENSE.

The proviso in Rev. St. 1909, § 4496, which section prohibits carrying concealed weapons, entering a public assemblage carrying a weapon, exhibiting a weapon in the presence of others in an angry and threatening manner, selling weapons to minors, and other similar offenses, with a proviso that it shall not apply to sheriffs or other peace officers or to travelers, was not intended to contain all the defenses to each of the offenses prescribed, and necessary self-defense is a defense against a prosecution for exhibiting a weapon in a threatening or angry manner.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Edward Arnett was convicted of unlawfully exhibiting a weapon in a rude, angry, and threatening manner, and he appeals. Reversed and remanded.

Defendant was tried in the circuit court of the city of St. Louis upon an indictment containing two counts, the first of which charged him with carrying a concealed weapon, to wit, a revolver, and the second thereof with having exhibited such weapon in a rude, angry, and threatening manner, in the presence of divers persons named in the indictment. Being put upon his trial, the court nisi, at the conclusion of all the evidence, instructed the jury to find the defendant not guilty on the first count in the indictment, but sent the case to the jury upon the second count. The jury found the defendant guilty thereon, and assessed his punishment at a fine of $500 and imprisonment in the city jail for a period of 60 days. From this conviction the defendant, after the usual motions, has appealed.

Since the contention which defendant most strenuously urges upon us is based upon the failure of the court to instruct the jury on self-defense, and since such an instruction, if it was necessary in this case, must arise upon both the law and the facts, it becomes necessary to briefly state these facts. The persons in whose presence defendant is charged in the indictment with having exhibited the weapon are Theodore B. Meyers, Ed. Jones, Rosie Cummings, and Sarah Porter. The exhibition of the weapon took place at the house of the said Rosie Cummings, 2927 Lucas avenue, St. Louis. The facts upon which the defendant bases his contention that the court should have instructed upon self-defense come for the most part from the defendant himself, but there are to be found in the testimony other statements, from other and apparently disinterested witnesses, which tend to corroborate the defendant's theory of self-defense.

Defendant testified that he was at the Cummings woman's house on the morning of January 1, 1913, between half past 1 and 2 o'clock; that while sitting in the back parlor thereof the prosecuting witness, Theodore B. Meyers, started to come into the room where defendant and others of his party were; that at the same time Meyers was making threats in a general way and expressing his desire to "burst a gun over somebody's head"; that upon seeing defendant in the room Meyers requested a companion, one Chambliss, to assist him in putting defendant out of the house; that thereupon defendant remarked that he (defendant) had better leave, and got up and moved toward the door; that Meyers then began cursing him, and he saw a knife in Meyers' hand. Defendant then left the back parlor, and went into the back end of the dining room, where, upon looking around, he saw the pistol which he is charged with exhibiting lying upon the dresser. He took the pistol in his hand and stepped toward the door which led into the hall just as Meyers, the prosecuting witness, came out of the dining room. Meyers made a motion at him (defendant) with a knife, cutting him upon the hand, and defendant then hit Meyers with the pistol, which exploded accidentally, defendant says. Other testimony in the case, from other witnesses, is to the effect that after the altercation a knife was found in this hall, somewhere in the neighborhood of the place where the scuffle occurred, by one Smith, a witness for defendant, who gave the knife to Police Sergeant Kirk, who was also a witness for defendant. The testimony of the witness Smith, who says that he found the knife in the hall sticking in the floor near where Meyers stood, slightly corroborates the testimony of defendant himself, and aids him somewhat on the question of whether there was or not testimony justifying an instruction on self-defense.

Upon the trial defendant requested the court to give an instruction submitting the theory of justification on the ground of self-defense, and actually prepared and submitted to the court such an instruction. This instruction the court refused to give, and likewise refused to give any instruction whatever on self-defense. The court, as was stated in the beginning, took away from the jury the count which charged defendant with carrying the weapon concealed, on the ground that there was no sufficient testimony offered to convict him on that count. The testimony for the state conclusively showed that defendant not only exhibited this pistol in a rude, angry, and threatening manner in the presence of the persons named in the indictment, but that he struck the prosecuting witness over the head with this pistol five or six times; that in the difficulty the pistol was discharged, and the prosecuting witness was shot therewith through the shoulder, and was so badly injured that it became necessary to take him to the hospital, where he remained for some six days. The facts above stated are deemed sufficient to make clear the questions discussed in the subjoined opinion.

John A. Gernez, of St. Louis, for appellant. John T. Barker,...