State v. Jackson
| Citation | 222 S.W. 746,283 Mo. 18 |
| Decision Date | 04 June 1920 |
| Docket Number | No. 21916.,21916. |
| Parties | STATE v. JACKSON. |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Gasconade County; A. Breuer, Judge.
John H. Jackson was convicted of carrying concealed weapons, and, after overruling of his motion for new trial, he appeals. Affirmed.
On July 14, 1919, the prosecuting attorney of Gasconade county, Mo., filed in the circuit court of said county a verified information charging defendant with the crime of carrying a concealed weapon. The information, without caption and jurat, is as follows:
On September 8, 1919, defendant was properly arraigned and entered his plea of not guilty.
The evidence on the part of the state tends to show that on the evening of May 29, 1919, Fred Bodendick, prosecuting witness in this case, arriving in Bland, Gasconade county, of this state, from Hermann, also in this state, went directly to the light plant and garage to see one Coonie Miller, relative to a trip back to Hermann next day. Upon arriving at the light plant and garage, he saw the defendant, John H. Jackson, in the act of filling one of the tires of his car which he had there with air. Defendant finished, put on his coat, and walked around to the back of the car, met Bodendick, who said to him, "You have been running over the family, and probably you want to run over me," whereupon he struck defendant, and defendant ran his hand in his right outside pocket. Bodendick, seeing this action, took hold of defendant, and they scuffled until, Bodendick says, defendant said he had enough. During this altercation Bodendick did not see defendant with a pistol, nor did he know that he had one, although while they were scuffling he felt something in defendant's pocket. After the scuffle they both walked back toward the car, and at this time defendant reached down and picked something from the ground. Bodendick saw that defendant had a gun or pistol, and attempted to "grab" his hand. Defendant fired, and Bodendick turned and ran. Defendant followed, discharging the pistol five times, firing each shot in Bodendick's direction. The first went through his "pants," and one of the others through his "shirt." It appears that defendant was the postmaster at Bland, and Bodendick's wife had told him that defendant had ejected his (the witness') daughter twice from the post office. One witness testified that defendant was not a sheriff, constable, police officer, or any officer authorized to execute process or make a criminal arrest, and several other witnesses who were present and saw the encounter testified that they did not at any time see a gun or pistol until after defendant had picked one up from the ground, and their testimony as to the other incidents are substantially as outlined above.
At the conclusion of respondent's evidence in chief, the defendant asked, and the court refused, the following instruction:
"The court instructs the jury that, under the law and the evidence in this case, you should find the defendant not guilty."
An exception was saved to this ruling. The evidence on the part of the defendant tends to show that he was the postmaster at Bland, and on the evening of the 29th of May, 1919, he closed the post office about 7 o'clock, and, not having a safe in the office, he placed the money, stamps, and money orders in his pocket to take home for safekeeping, as it was his custom to do. He also placed in his right-hand outside coat pocket his pistol, and, as he states, the lapel of the pocket of his coat was turned in, and the pistol not concealed. He had recently bought an automobile from Mr. Neese, the cashier of the Commercial Bank, and had made an appointment with him to test the car out, to ascertain whether or not it was in good running condition. The defendant was intending to make a trip to New Salem the next day. After the ride, and after Mr. Neese had left him, he went to the garage to fill one of the tires of the car with air, intending to leave immediately for his home. After filling the tire, he put on his coat, and noticed the butt of the pistol protruding from his pocket. After putting on his coat, and after he started to get into the car, he noticed the valve cap of the air stem on the ground and stooped to put it on. While doing this, he heard Bodendick, or some one else, say something, turned his head, and saw that it was Bodendick, who immediately kicked him while he was still in this position. He grabbed Bodendick by the leg, and was "slung" loose and kicked in the ribs twice more. Defendant again "grabbed" Bodendick's leg, and they both fell in a nearby ditch, and as they crawled out Bodendick, being somewhat ahead of defendant, started to pick up something, and, as defendant said, made some threatening remark, just what it was he did not know. At this time he saw his gun on the ground, picked it up, and, as Bodendick "grabbed" him again, fired at him and continued to do so five times. Defendant says that he does not know how the gun came to be on the ground. After the shooting defendant surrendered to a deputy sheriff and was released on bond.
The instructions and such other matters as may be deemed important will be considered in the opinion.
The case was tried on September 8, 1919, before a jury, and the latter returned into court the following verdict:
On September 10, 1919, the court pronounced judgment and sentence upon defendant in conformity with the terms of the verdict. Defendant, in due time, filed his motion for a new trial, which was overruled, and the cause appealed by him to this court.
Frank W. McAllister, Atty. Gen., and H. P. Ragland, Asst. Atty. Gen., for the State.
BAILEY, C. (after stating the facts as above).
1. The information heretofore set out is sufficient in form and is in accordance with approved precedents. Section 4496, R. S. 1909; State v. Athanas, 150 Mo. App. 588, 131 S. W. 373; State v. Smith, 24 Mo. App. 413; Kelley's Crim. Law & Practice, § 588, p. 517; State v. Carter, 259 Mo. loc. cit. 360, 168 S. W. 679; State v. Barton, 209 S. W. 888, 889.
2. The jury found defendant guilty as charged in the information and assessed his punishment at a fine of $250. The verdict was sufficient in form. State v. Richardson, 248 Mo. loc. cit. 575, 576, 154 S. W. 735, 44 L. R. A. (N. S.) 307; State v. Elvins, 101 Mo. 243, 13 S. W. 937; State v. Berning, 91 Mo. 82, 85, 3 S. W. 588.
3. Defendant, in his motion for a new trial, assigns the following errors:
There was substantial evidence offered at the trial to sustain the verdict against defendant. It was the province of the jury to pass upon the facts under the instructions of the court. Aside from the foregoing, we have uniformly held that such general assignments are too indefinite to require at our hands further consideration of same. State v. Mann, 217 S. W. loc. cit. 69; State v. Rowe & Sanders, 271 Mo. loc. cit. 94, 196 S. W. 7; State v. Selleck, 199 S. W. loc. cit. 130, 131; State v. McBrien, 265 Mo. loc. cit. 604, 605, 178 S. W. 489; State v. Sydnor et al., 253 Mo. loc. cit. 380, 161 S. W. 692; State v. Scott, 214 Mo. loc. cit. 291, 113 S. W. 1069; State v. Espenschied, 212 Mo. loc. cit. 222, 223, 110 S. W. 1072; section 1841, R. S. 1909.
4. Appellant, in his third assignment, contends that the trial court committed error in overruling his demurrer to the evidence at the conclusion of the state's evidence ha chief. The defendant, having put before the jury his own evidence, and rebuttal testimony having been introduced, he waived his right to be heard on the original demurrer, as it became the duty of the jury to determine the issues under all the evidence in the cause. The ruling, in respect to above matter, has become elementary law in this state, as shown by the following authorities: State v. Mann, 217 S. W. 60; Lareau v. Lareau, 208 S. W. loc. cit. 243; State v. Selleck, 199 S. W. loc. cit. 130; Riley v. O'Kelly, 250 Mo. loc. cit. 660, 157 S. W. 566; State v. Cummings, 248 Mo. loc. cit. 518, 154 S. W. 725; State v. Gow, 235 Mo. loc. cit. 329, 138 S. W. 648; State v. Lackey, 230 Mo. loc. cit. 713, 132 S. W. 602; State v. Martin, 230 Mo. loc. cit. 700, 132 S. W. 595; Riggs v. Railroad, 216 Mo. loc. cit. 310, 115 S. W. 969; Hilt v. Ry. Co., 101 Mo. loc. cit. 42, 13 S. W. 946; McPherson v. Railway Co., 97 Mo. loc. cit. 255, 10 S. W. 846; Guenther v. Ry. Co., 95 Mo. loc. cit. 289, 8 S. W. 371; Bowen v. Railway Co., 95 Mo. loc. cit. 275, 276, 8 S. W. 230.
(a) There is nothing in the record before us which indicates that defendant filed a demurrer to the evidence at the conclusion of the whole case, but, even if one had been filed, the trial court would have been justified in overruling same, as there was substantial evidence offered at the trial sustaining the verdict of the jury.
5. Appellant's fourth assignment...
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