State v. Horne
| Decision Date | 13 October 1981 |
| Docket Number | No. 62551,No. 2,62551,2 |
| Citation | 622 S.W.2d 956 |
| Parties | STATE of Missouri, Respondent, v. Elijah VAN HORNE, Appellant |
| Court | Missouri Supreme Court |
Howard McFadden, Public Defender, Thomas H. Hearne, Asst. Public Defender, Jefferson City, for appellant.
John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, for respondent.
STOCKARD, Commissioner.
Elijah Van Horne was convicted by a jury of carrying a concealed weapon in violation of § 571.115 RSMo 1978, and sentenced to confinement by the Department of Corrections for a term of two years. He has appealed from the ensuing judgment.
Appellant does not challenge the sufficiency of the evidence. We need only state that a jury reasonably could find that on January 21, 1979, while appellant was an inmate of Algoa Reformatory, a search of his person disclosed that he was carrying concealed in the sock for his left foot and covered by his left pants leg a "kitchen knife 8 or 81/2 inches long that had been sharpen down to a point and the edge had been sharpened and had white tape wrapped around the handle." For comparison see State v. Wood, 562 S.W.2d 699 (Mo.App.1978).
Section 571.115 RSMo 1978, in its material parts is as follows:
"If any person shall carry concealed upon or about his person a dangerous and deadly weapon of any kind or description * * * he shall, upon conviction, be punished by imprisonment by the division of corrections for not more than five years or by imprisonment in the county jail not less than fifty days nor more than one year, but nothing contained in this section shall apply * * * to persons traveling in a continuous journey peaceably through this state."
By his first point appellant asserts that § 571.115 is in violation of the equal protection clause of the Federal and State Constitutions "in that it contains an exception exempting its application to persons traveling through the state which constitutes an unreasonable and arbitrary classification by applying only to persons not traveling through the state."
The above statute does not affect "fundamental rights" as that term is used in Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.E.2d 520 (1976), and it does not involve a "suspect class" in need of special protection. Therefore, "the legislation will be struck down (on the basis that it constitutes a denial of equal protection of the law) only if it is not rationally related to some legitimate state interest." Labor's Educational and Political Club-Independent v. Danforth, 561 S.W.2d 339, 347 (Mo. banc 1978).
Regulation of the carrying of firearms and other dangerous weapons is an exercise of the State's police power. Annotation, 28 A.L.R.3d 854 § 5. , Howe v. City of St. Louis, 512 S.W.2d 127, 132 (Mo. banc 1974). See also, City of St. Louis, v. Liberman, 547 S.W.2d 452 (Mo. banc 1977).
State v. Jordan, 495 S.W.2d 717, 720 (Mo.App.1973).
The legislature has created a class exempt from the penal provisions of § 571.115 consisting of "legally qualified sheriffs, police officers and other person whose bona fide duty is to execute process, civil or criminal, make arrests, or aid in conserving the public peace, (and) persons traveling in a continuous journey peaceably through this state." State v. Cousins, 131 Mo.App. 617, 110 S.W. 607 (1908). The basic question here is whether the equal protection clause precludes the legislature, in the exercise of its discretion, from creating this exempt class, and from including in that class "persons traveling in a continuous journey peaceably through this state."
An exemption to "travelers" from the regulation of carrying concealed weapons is not unique to this State. For somewhat similar provisions, but containing different wording, see State v. Hanigan, 312 So.2d 785 (Fla.App.1975); State v. Smith, 157 Ind. 241, 61 N.E. 566 (1901); Hathcote v. State, 55 Ark. 181, 17 S.W. 721 (1891); Joseph v. State, 299 So.2d 211 (Miss. 1974); Allen v. State, 422 S.W.2d 738 (Tex.Cr.App.1968).
A classification is arbitrarily discriminatory, and therefore unconstitutional, if it rests upon a ground wholly irrelevant to the achievement of the legislative objective. Gem Stores, Inc. v. O'Brien, 374 S.W.2d 109 (Mo. banc 1963). "The purpose of the exception is to enable travelers to protect themselves on the highways against such potential or unknown dangers as are not supposed to exist among their own neighbors; * * *." 94 C.J.S. Weapons § 9c. This unquestionably is a legitimate matter of state interest. As stated in State v. Smith, supra, the evil sought to be...
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State v. Wilkerson
...on the highways against such potential or unknown dangers as are not supposed to exist among their own neighbors. State v. Horne, 622 S.W.2d 956, 958 (Mo.1981). Further, because we are construing a proviso in the statute, we construe the phrase "continuous journey peaceably through this sta......
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State v. Richard
...not absolute.3 The state has the inherent power to regulate the carrying of firearms as a proper exercise of the police power. State v. Horne, 622 S.W.2d 956, 957 (Mo. banc The function of police power is to preserve the health, welfare and safety of the people by regulating all threats har......
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State v. Patterson, 62995
...States Constitution and Article I, Section 2 of the Constitution of Missouri * * *." This precise contention was ruled in State v. Van Horne, 622 S.W.2d 956 (Mo.1981). Reference is made to the opinion in that case, and the rationale need not again be set forth The judgment is affirmed. PER ......
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Heidbrink v. Swope
...place, and manner of bearing firearms. City of Cape Girardeau v. Joyce, 884 S.W.2d 33, 34-35 (Mo.App. E.D.1994); see State v. Van Horne, 622 S.W.2d 956, 957 (Mo.1981). In addition, "Numerous jurisdictions have recognized that the constitutional right to keep and bear arms under a state cons......