State v. Gibson

• Decision Date: 27 March 1929
• Docket Number: No. 27902.,27902.
• Citation: 15 S.W.2d 760
• Parties: THE STATE v. H.C. GIBSON, Appellant.
• Court: Missouri Supreme Court

15 S.W.2d 760

THE STATE v. H.C. GIBSON, Appellant.

No. 27902.

Supreme Court of Missouri, in Banc.

March 27, 1929.

Appeal from Dunklin Circuit Court. — Hon. W.S.C. Walker, Judge.

REVERSED AND REMANDED.

John M. Dalton and L.R. Jones for appellant.

(1) The learned trial court erred in giving Instructions 2 and 3 on behalf of the State, in that both of said instructions should have required a finding by the jury that the defendant intentionally carried the pistol concealed; and the court erred in failing to instruct the jury, under the circumstances of this case, that before they could find defendant guilty, he must have intended to have carried the same concealed. State v. Carter, 259 Mo. 358; State v. Bauman, 278 S.W. 976; State v. Whitman, 248 S.W. 938. Instruction 3 incorrectly defines what constitutes a concealed weapon "upon" the person. (2) The evidence offered and excluded by the court should have been permitted in mitigation of the punishment, and the trial court erred in excluding the same. This was evidence to the effect that at least three men had immediately prior to the date of the offense charged, threatened the life of the defendant, and these threats had been communicated to him; in addition, one of the threatening parties had attempted to execute his threat by shooting off the right arm of the appellant, and after that again threatened the life of the appellant. Secs. 1862, 1863, R.S. 1899; Sec. 3275, R.S. 1919; State v. Carter, 259 Mo. 351; State v. Hogan, 273 S.W. 1061; 27 Cyc. 810; Smith v. People, 32 Colo. 251; Maxwell v. State, 143 Ala. 57; Bailey v. Com., 11 Bush (Ky.) 688; Sudduth v. State, 70 Miss. 250; 40 Cyc. 866. (3) The court erred in permitting evidence to be offered that the defendant was drunk. State v. Bowen, 296 S.W. 125; Hainey v. State, 147 Ala. 146; Gainey v. State, 141 Ala. 72; 40 Cyc., 867.

North T. Gentry, Attorney-General, and A.M. Meyer, Special Assistant Attorney General, for respondent.

(1) The evidence was sufficient. State v. Conley, 280 Mo. 21; State v. Whitman, 248 S.W. 938. (2) Intent is not an element of the offense of carrying concealed weapons. Sec. 3275, R.S. 1919; State v. Conley, 280 Mo: 25; State v. Jackson, 283 Mo. 27. (3) In any event no instruction upon the subject of intent is required where there is no controversy in the evidence upon the question of whether or not the weapon was intentionally concealed. State v. Carter, 259 Mo. 359; State v. Conley, 280 Mo. 25; State v. Jackson, 283 Mo. 27. Furthermore, the defendant did not ask for any instruction upon the subject of intent (showing that this was not a controverted point). He asked only one instruction, which was given. (4) Defendant had no right to show that he had been threatened or that he apprehended great bodily harm or had good reason to carry the weapon in necessary self-defense. State v. Carter, 259 Mo. 360; State v. Jackson, 283 Mo. 25; State v. Keet, 269 Mo. 206. (5) It was not error to admit evidence that defendant was drunk. Grooms, the deputy sheriff, testified that he followed defendant and arrested him because he was operating a motor vehicle on the highway while intoxicated. It was competent to show the reason for and the circumstances surrounding the arrest. 16 C.J. 553; State v. Witherspoon, 231 Mo. 721; People v. Scott, 261 Ill. 165; Holt v. State, (Tex.), 45 S.W. 1016. Furthermore, the defendant stood charged with the offense of operating a motor vehicle on the highway while in an intoxicating condition. The evidence was certainly relevant and competent under count four, which was not dismissed until the close of all the evidence, when the court compelled the prosecuting attorney to elect upon which of the two counts, standing, he would ask a conviction. Nor was such an election required to be made until all of the evidence was in. State v. Whitman, 248 S.W. 938; State v. Collins, 248 S.W. 600.

WHITE, C.J.

By information in four counts filed in the Circuit Court of Dunklin County, defendant was charged with the commission of four distinct felonies. On the plea of defendant counts two and three were abated, and the case went to trial on counts one and four.

The first count charged the defendant with unlawfully and feloniously carrying concealed about his person a deadly weapon, a revolving pistol.

The fourth count charged him with operating a motor vehicle while intoxicated. The trial proceeded on both counts with no motion on the part of the defendant to elect. At the close of its evidence the State elected to dismiss count four, and asked a verdict upon count one. The jury returned a verdict finding the defendant guilty on the first count and assessed his punishment at two years' imprisonment in the penitentiary. From a judgment in conformity with the verdict the defendant appealed.

The evidence throughout the trial tended to show that the defendant was drunk, and more evidence was offered on the fourth count than on the first. It further appeared, incidentally, that the defendant had a bad reputation, his right arm was off, and, according to his own testimony, he lost it in a shooting scrape in Arkansas, where he was convicted of "killing a fellow." All this got before the jury and a great deal of it was entirely irrelevant to the issues tendered on the first count.

The evidence for the State on that count shows that the defendant Gibson, called Clay Gibson, and one Henry Gentry were driving in a Ford car, and drove into a place called Arbyrd. They turned the car at that point and headed west against the walk. The attention of Constable Grooms, a witness for the State, was attracted by the defendant's eccentric driving of the car, whipping the road from one side to the other, which he ascribed to the fact that the defendant was drunk. After the car was stopped, Grooms said he came up on the walk, on the right hand side of the car, and asked the occupants if they had any weapons. Then he told Gentry to get out of the car. Gentry obeyed, and while the defendant was fumbling in his pocket for a knife to give the constable, a pistol fell from his clothes upon the seat of the car. On cross-examination the witness admitted that from where he stood he could not have seen the pistol if it had been lying on the seat. It was concealed from his view because on the other side of the occupants of the seat. And further in his cross-examination he said:

"After Henry [Gentry] got sober I was talking to him about getting it and getting drunk; and I told him it could have been his gun as easy as it could have been Clay's [Gibson's], the condition it was in."

Defendant's right arm was off and he managed the steering wheel with his left hand.

Mr. Boss Young, a witness for the State, came up to the car about the time Grooms ordered Gentry out of it, stood on the walk somewhat behind Grooms and stated that he saw the pistol in the seat right under the steering wheel when Gibson got out. He was asked if he could see it from the left side of the car in the street. He said he could not say about that; he was not over there.

The defendant when on the stand denied that he had the pistol concealed, and testified as follows:

"Q. Now, Mr. Gibson, you may state that this pistol that they referred to here, where that was at that time, as you were there at Arbyrd, where was it laying? A. Laying on the left hand side of my car, in the seat.

"Q. Down in the seat? A. Yes, sir.

"Q. On top of the seat? A. Yes, sir.

"Q. Was it in view there on top of the seat? A. Yes sir."

The defendant also introduced two or three witnesses who testified that Grooms had said he didn't take a gun off of the defendant, that he found it lying on the car seat, and that was the first he saw of it.

I. The case was carried through from start to finish on the two counts. A great quantity of evidence was introduced to prove that the defendant was driving the car while intoxicated. At the close of the evidence the State chose to dismiss the charge on that count. The defendant can now take no advantage of Two Crimes. that because the trial proceeded in that way without objection. The court gave no instruction directing the jury to disregard evidence of that kind — a more serious charge than the one upon which he was convicted.

It appeared further that the defendant was a fighting man; that he had lost his arm in a brawl in Arkansas, where he had supposedly killed a man and had been convicted for it. The severe penalty assessed by the jury was no doubt due more to the fact that the defendant had a bad reputation and was guilty of other offenses than to the cogency of the evidence to sustain the charge upon which he was convicted. For that reason it is important to consider whether the court committed error in instructing the jury in regard to this charge.

II. No doubt a revolver was on the seat of defendant's car, but the evidence is conflicting as to whether it was concealed intentionally from the view of the sheriff or any other person passing the car. As seen by the...