State v. Cook

• Decision Date: 23 June 1908
• Citation: 112 S.W. 710,132 Mo. App. 167
• Parties: STATE v. COOK.
• Court: Missouri Court of Appeals

112 S.W. 710

132 Mo. App. 167

STATE v. COOK.

St. Louis Court of Appeals. Missouri.

June 23, 1908.

1. WITNESSES — EXAMINATION—CROSS-EXAMINATION—LIMITATION TO SUBJECTS OF DIRECT EXAMINATION.

Questions on cross-examination upon a subject not alluded to upon accused's examination in chief were improper.

2. SAME—IMPEACHMENT.

Where it was not claimed that accused made statements in his examination in police court inconsistent with those made on trial, but only that he stated a fact at trial not stated in police court, a question as to whether he made certain statements in police court did not impeach his testimony, and was improper.

3. WEAPONS — CONCEALED WEAPONS — RIGHT TO CARRY.

One need not deposit money in bank to protect it, but may carry it on his person, and may carry concealed weapons with which to defend his property, if he believes in good faith that there is danger of attack or robbery.

4. CRIMINAL LAW — TRIAL — ARGUMENT OF COUNSEL—APPEAL TO PREJUDICE.

In a prosecution of a negro for carrying concealed weapons, it appearing that accused kept a negro club and had pleaded guilty to illegally selling liquor, remarks by the prosecuting attorney that it was such dives as defendant ran, and white juries backing up a negro in packing a pistol, which caused white mobs, were objectionable and prejudicial.

5. SAME—APPEAL—PROCEEDINGS NOT IN RECORD—RULING OF TRIAL COURT.

Objectionable remarks of the prosecuting attorney in argument cannot be considered on appeal, where the record does not show what ruling, if any, the trial court made on the objection thereto.

Appeal from Criminal Court, Greene County; A. W. Lincoln, Judge.

George Cook was convicted of carrying concealed weapons, and he appeals. Reversed and remanded.

Val. Mason and Jas. Delaney, for appellant. Roscoe C. Patterson, for the State.

BLAND, P. J.

In the month of September, 1906, defendant was arrested by the marshal of the city of Springfield, Mo., taken before the police court of said city, and there charged with violating the ordinances of said city by carrying a revolver concealed on his person. Afterwards the prosecuting attorney of Greene county filed an information in the criminal court of said county, charging defendant with the same offense. It appears from the evidence that defendant was twice tried in the police court. The fact is unimportant, except for the light it throws on defendant's cross-examination in the Greene county criminal court which resulted in his conviction. The state's evidence tends to show that defendant carried a revolver concealed on his person at the time and place alleged in the information. Defendant's evidence shows he is a farmer, and resides a short distance from Springfield, in Greene county. He admitted he had a revolver on his person on the day charged in the information, but denied that it was concealed. By way of justification for carrying the revolver, he showed that he had about $195 in cash on his person at the time he was arrested, which was after night, and that he feared attack by thieves and robbers on his way home, and procured the revolver a few minutes before his arrest for the purpose of protecting himself and his property. Defendant is a negro, and his evidence shows that in April, 1906, three negroes were taken from the jail at Springfield by a mob of whites and hung and burned on the public square of that city, and also introduced evidence tending to show that the negro population of Springfield was still in danger from mob violence, that they had been notified in the spring of 1906 to leave the country, and at about the same time he received two letters threatening to make way with him if he did not leave the county. The state's evidence tended to show that the excitement which had existed at the time of the mob had died out, and the negroes were not in danger of mob violence in September, 1906. The issues were submitted to the jury on instructions that were fair to defendant.

The principal errors complained of by defendant is the latitude permitted the prosecuting attorney in his cross-examination of defendant as a witness, and in remarks of the prosecuting attorney in his address to the jury. On cross-examination the prosecuting attorney, over the objection of defendant's counsel, was permitted to ask defendant whether or not he had made certain statements in the police court in regard to carrying the revolver, avowedly for the purpose of impeaching the witness. Defendant did not testify in chief to what he swore in the police court, nor did the prosecuting attorney claim that he made statements in the police court inconsistent with what he swore on the trial in the criminal court. All he claimed was that he stated a fact on the trial in the criminal court which he did not state on the trial in the police court. It seems to us that this was improper, and not legitimate cross-examination of defendant, for the reason it was not alluded to in his examination in chief, and for the further reason it did not impeach his evidence. Over the objections of his counsel, the prosecuting attorney was also permitted to ask defendant, on cross-examination, why he did not bank his money, and to show that he had received it within banking hours and could have deposited it. Defendant was not required to deposit his money in a bank or elsewhere. His legal right to carry it upon his person should not have been questioned. He not only had the lawful right to carry it on his person, but also had the right to carry arms concealed on his person to defend his possession thereof, if in good faith he believed there was danger of thieves and robbers trying to take it from him on his way home. Some words passed between a deputy sheriff and defendant just before the latter's arrest about a capias execution against defendant.

The deputy and defendant both testified to the conversation. Taking that as a foundation, the prosecuting attorney, on cross-examination of defendant, over the objection of defendant's counsel, was permitted to show that defendant kept or owned a club composed of negroes in the city of Springfield, and that defendant and other negroes had pleaded guilty to the illegal sale of liquor at this club, and in his address to the jury the prosecuting attorney used the following objectionable and prejudicial remarks: "What causes white people to rise in a mob in a community? It's a white jury backing up a burly negro in such offenses as packing a pistol. The experience you all have had is that such dives as this defendant was running causes the mobs." Defendant's counsel objected to the above remarks, but the record does not show what ruling, if any, the court made on the objection. Therefore we are not permitted to discuss these very objectionable and prejudicial remarks. We think there is sufficient evidence in support of the verdict; but there is very substantial evidence tending to show defendant was justified under the statute in carrying the revolver, and his defense might have prevailed with the jury had the evidence and cross-examination been kept within legal bounds. In other words, we think prejudicial error intervened on the trial which calls for a reversal of the judgment.

The judgment is reversed and the cause remanded. All concur.

NOTE.

[a] (Ala. 1873) As used in the exception in Rev. Code, § 3555, touching the carrying of concealed weapons, the expression "having good reason to apprehend an attack" is more restricted than "having reason to apprehend an attack." This distinction should be observed in charging the jury.—Baker v. State, 49 Ala. 350.

[b] (Ala. 1873) The term "being threatened," as used in the exception in Rev. Code, § 3555, touching the carrying of concealed weapons, applies only to impending threats.—Baker v. State, 49 Ala. 350.

[bb] (Ala. 1875) Reasonable ground to apprehend an attack at a dangerous locality which defendant visited about daybreak will not be a sufficient excuse for casually carrying concealed a weapon procured for that visit, late in the day, at a locality not shown to be dangerous.— Chatteaux v. State, 52 Ala. 388.

[c] (Ala. 1876) The fact that one has been threatened with, or may have good reason to apprehend, an assault, does not justify him, under Rev. Code, § 3555, in carrying concealed weapons for self-defense, where it appears that such weapons were carried with the intention of making or provoking an attack.—Stroud v. State, 55 Ala. 77.

[cc] (Ala. 1881) The exception in Code, § 4109, as amended, against carrying concealed weapons, in favor of a person "being threatened with or having good reason to apprehend an attack," held to extend only to carrying them as a means of defense, and not of offense, though defendant was not bound to negative an offensive purpose on his part.—Collier v. State, 68 Ala. 499.

[d] (Ala. 1888) Under Code 1886, § 3775, providing that on indictment for carrying concealed weapons defendant may show "that at the time of carrying the weapon concealed he had good reason to apprehend an attack, which the jury may consider in mitigation of the punishment or justification of the offense," an instruction which predicates an acquittal upon defendant's mere belief that he was in danger of an attack, and not upon the fact that he had good reason to apprehend it, is properly refused.— Davenport v. State, 85 Ala. 336, 5 South. 152.

[dd] (Ala. 1889) Under Code 1886, § 3775, providing that the carrying of a concealed weapon may be justified by proof that defendant "had good reason to apprehend an attack," a defendant should be acquitted when it appears that when arrested with the concealed weapon a person with whom he was on bad terms had threatened to "fix him on sight," and was at the time of making the threats, which were communicated to defendant, armed with a pistol, and that defendant had to pass by this person's house on his way home.—Dooley v. State, 89 Ala. 90, 8 South. 528.

[e] (Ala. 1891) The...