State v. Athanas

• Decision Date: 24 October 1910
• Parties: STATE v. ATHANAS.
• Court: Missouri Court of Appeals

131 S.W. 373

150 Mo. App. 588

STATE v. ATHANAS.

St. Louis Court of Appeals. Missouri.

October 24, 1910.

1. CRIMINAL LAW (§§ 1129, 1130) — APPEAL — ABSENCE OF ASSIGNMENT OF ERROR AND BRIEF.

By provision of Rev. St. 1909, § 5312, the court must render judgment on the record on appeal, though there are no assignments of error before it, and no brief has been filed.

2. WEAPONS (§ 17) — CARRYING WEAPONS — EVIDENCE.

Evidence held sufficient to justify a conviction of carrying a concealed weapon; the evidence of the carrying being within an exception provided by Rev. St. 1899, § 1863 (Ann. St. 1906, p. 1285), being disbelieved.

3. CRIMINAL LAW (§ 1144) — APPEAL.

The court's finding of defendant guilty of carrying a concealed weapon will be treated as indicating that, as was its right, it disbelieved his story, tending to show that the carrying was within an exception to the statute; no proper declaration of the law, as to the circumstances under which he could lawfully carry the weapon, having been asked and refused, so as to indicate that the court had an erroneous view of the law.

4. CRIMINAL LAW (§ 412) — EVIDENCE — DECLARATIONS.

Defendant's witness may not testify to a statement made by defendant to witness; such statement having been but a mere narrative of a past occurrence.

5. INDICTMENT AND INFORMATION (§ 110) — SUFFICIENCY.

An information charging that defendant, at a certain time and place, did unlawfully carry concealed about his person a certain deadly and dangerous weapon, to wit, revolver pistol loaded with gunpowder and leaden ball, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state, is sufficient, as following the words of the statute.

Appeal from St. Louis Court of Criminal Correction; Wilson A. Taylor, Judge.

Louis Athanas was convicted of carrying a concealed weapon, and appeals. Affirmed.

Brock Storts, for appellant. P. W. Moss, for the State.

CAULFIELD, J.

The appellant was convicted on June 9, 1908, of the offense, then a misdemeanor, of carrying a concealed weapon about his person; the prosecution being by information and the trial by the court.

There are no assignments of error before this court or briefs filed on behalf of either party; but nevertheless, under section 5312, Rev. St. 1909, the court must render judgment upon the record. There were no declarations of law asked or given and no objections by appellant as to the admissibility of testimony.

Appellant urged in his motion for a new trial, which was overruled and exception saved, that the finding was contrary to the law and the evidence. We cannot agree with this contention. Both the witness on behalf of the state, and appellant as a witness in his own behalf, testified that about 9 o'clock in the evening of the ____ day of ____, 1908, appellant was arrested as he was leaving a grocery at the corner of Second and Dorcas streets in the city of St. Louis, and that at that time he had a loaded revolver concealed in his pocket. This evidence was sufficient to justify a conviction unless it was shown that his carrying it came within the exceptions in section 1863, Rev. St. 1899 (Ann. St. 1906, p. 1285). State...