State v. LaRkin

• Court: Missouri Court of Appeals
• Writing for the Court: ROMBAUER
• Citation: State v. LaRkin, 24 Mo.App. 410 (Mo. App. 1887)
• Decision Date: 01 February 1887
• Parties: THE STATE OF MISSOURI, Respondent, v. JOSEPH LARKIN, Appellant.

24 Mo.App. 410

THE STATE OF MISSOURI, Respondent,

v.JOSEPH LARKIN, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 1, 1887.

APPEAL from the Laclede County Circuit Court, W. J. WALLACE, Judge.

Reversed and remanded.

JAS. MORAN, for the appellant.

ROMBAUER, J., delivered the opinion of the court.

The defendant was indicted, tried, and convicted on a charge of carrying, concealed upon his person, a dangerous and deadly weapon. The testimony offered by the state tended to show, that the defendant, at the date of the alleged offence, had an unloaded pistol, which was apparently new and unused, in his overcoat pocket. The defendant, who testified on his own behalf, stated that he had that day bought the pistol, which was new, at the hardware store of one Fount Scott, not for the purpose of immediate use, but for the purpose of taking it with him on a trip which he was to make the succeeding week, and that the pistol had never been loaded.

The cause was tried by the court sitting as a jury There was no conflict of testimony between the evidence offered for the state and that offered for the defendant. The court refused all of the defendant's instructions, and the following among the number:

“If the court, sitting as a jury, believe from the evidence, that the defendant, on the thirtieth day of January, 1885, purchased a pistol of one Fount Scott, in the city of Lebanon, and that he had such pistol upon his person, in one of his coat pockets, and that pistol had not at any time been loaded with powder and ball, it will find the defendant not guilty, unless it further find that such pistol was a dangerous and deadly weapon, notwithstanding the same was not loaded.”

The court refused this instruction, and in so doing committed error. The terms, dangerous and deadly, are interchangeable, because dangerous means dangerous to life, but what is a dangerous and deadly weapon depends not so much on the article itself, provided it is one that may become dangerous to life, as upon surrounding circumstances, and the intent with which it is carried, and is necessarily, to some extent, a question of fact and not of law.

In Flournoy v. The State (16 Texas, 31), the court refused to instruct the jury that, an unloaded pistol is not a deadly weapon, and it was held no error. In Commonwealth v. Branham (8 Bush, 387), a chisel was held to be a deadly weapon, while in United States v. Small (2 Curtis, 243), one of the ablest jurists charged the jury that, whether the assault...