State v. Barton

• Decision Date: 04 March 1919
• Docket Number: No. 21292.,21292.
• Citation: 209 S.W. 888
• Parties: STATE v. BARTON.
• Court: Missouri Supreme Court

209 S.W. 888

STATE v. BARTON.

No. 21292.

Supreme Court of Missouri, Division No. 2.

March 4, 1919.

Rehearing Denied March 17, 1919.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Price Barton was convicted of carrying a concealed weapon, and appeals. Affirmed.

Frank W. McAllister, Atty. Gen., and Henry B. Hunt, Asst. Atty. Gen., for the State.

FARIS, J.

Defendant was convicted of carrying a concealed weapon, to wit, a pistol, and sentenced therefor to imprisonment in the penitentiary for a term of two years. After the conventional manner, he has appealed. He is not represented in this court by counsel, so perforce the statute we must examine the whole record for errors. Section 5312, R. S. 1909.

In the view we take of the case no necessity exists for cumbering the books with a statement of the substantive facts. Suffice It to say that the evidence upon which defendant was convicted is sufficient. The most meager phase of that evidence is that which bears upon the question whether the pistol, which the defendant admitted he carried, was in fact concealed. State v. Carter, 259 Mo. 349, 168 S. W. 679. On this point the state, so far as numbers are concerned, was outsworn; since the witnesses who swore that the pistol was not concealed outnumbered those who swore that it was. But the burden of credibility, and not the mere burden of numbers, is the burden of proof which the law saddles upon the state, and since there is substantial evidence that the pistol in question was carried concealed, the sufficiency of that evidence to show this fact was for the jury.

The record discloses that, just before the trial began, the trial court, on the oral statement of the prosecuting attorney that the original indictment in the case was lost, permitted the supplying of this document by the filing of what purported to be a true copy thereof. Over the objection and exception of defendant, he was tried and convicted upon the supplied indictment. In the matter of supplying the lost indictment, the court nisi made the following order, to wit:

"At this time it appearing to the court that the indictment herein is lost, it is now ordered by the court that the prosecuting attorney be allowed to supply said lost indictment by copy, which is done." "

Thereupon, defendant objecting and excepting, the prosecuting attorney filed what purported to be a true copy of the lost indictment. The supplied indictment had indorsed thereon a copy of the file mark, with date of filing by the clerk, of the original indictment, and had appended thereto an affidavit made by John R. Johnson, the then prosecuting attorney, which—jurat, signature, and merely formal parts omitted—reads thus:

"John R. Johnson, first being duly sworn, upon his oath says that the above and foregoing is a true and correct copy of the original indictment returned by the grand jury within and for Reynolds county, Missouri, at the regular November term of the circuit court of said county, and filed in said court on December 2, 1916; the original indictment having been lost or taken from the files."

There is no doubt that the circuit court may permit, by virtue of its inherent power, the supplying of a lost indictment by the filing of what is proved to be a true copy thereof. State v. Simpson, 67 Mo. 647; State v. Lord, 118 Mo. 1, 23 S. W. 764; State v. Cunningham, 130 Mo. 507, 32 S. W. 970; State v. McCarver, 194 Mo. 717, 92 S. W. 684; State v. Wilson, 200 Mo. loc. cit. 28, 98 S. W. 68. But before such supplying is permissible there must be some showing, "either by the record, or by the testimony of witnesses," that the original indictment had been in fact filed in court and had thus become a record thereof. State v. Simpson, supra; section...