State v. Loahmann, 32432.

• Decision Date: 03 March 1933
• Docket Number: No. 32432.,32432.
• Citation: 58 S.W.2d 309
• Parties: STATE v. LOAHMANN.
• Court: Missouri Supreme Court

58 S.W.2d 309

STATE v. LOAHMANN.

No. 32432.

Supreme Court of Missouri, Division No. 2.

March 3, 1933.

Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.

Wilbur Loahmann was convicted under an indictment charging him with going into a public assemblage having upon his person a deadly weapon, and he appeals.

Affirmed.

Richeson & Richeson, of Potosi, for appellant.

Stratton Shartel, Atty. Gen., and C. A. Powell, Asst. Atty. Gen., for the State.

COOLEY, Commissioner.

In the circuit court of Washington county defendant was convicted under an indictment charging him with the crime of going into a public assemblage of persons met for a lawful purpose other than for militia drill, etc., having upon and about his person a deadly weapon, to wit, a loaded revolving pistol. The crime charged is a felony and is one of the offenses denounced by section 4029, R. S. 1929, Mo. Stat. Ann. § 4029. Upon trial he was convicted and his punishment was assessed by the jury at a fine of $100. From sentence and judgment on the verdict he has appealed. He assigns error in the overruling of his demurrer to the evidence and certain rulings of the court at the trial.

The state's evidence tended to show that there was a pie supper at a schoolhouse on the night of February 28, 1931, attended by about one hundred and fifty people, at which defendant was present and while in attendance at said assemblage in the schoolhouse had upon his person in his hip pocket a loaded revolving pistol. The barrel and part of the cylinder of the pistol projected above the top of the pocket but was concealed by defendant's coat except at one time when he stooped over to speak to or throw his arms around a little boy. At that time his coat fell away from his hip pocket and several persons saw the revolver. One witness testified she saw enough "to see and know that it was a gun"; that it was an ordinary revolver, she thought, "about a thirty-eight"; that she could see "the barrel and the magazine and the trigger." Another witness testified to seeing the barrel of a revolver protruding from defendant's pocket. Another saw "the barrel and magazine and the shells in the cylinder." Another testified that when defendant leaned over "a revolver barrel and cylinder was sticking out of his pocket." There was further testimony as to the color of the revolver and other circumstances that need not be detailed.

There was evidence that shortly after the revolver was thus seen in defendant's pocket he left the room for a few minutes with a Mr. Crow who, we infer from the evidence, was his employer. A witness testified that when he returned to the room defendant said the boss had taken his gun from him. "He said: `He took my gun off as he was afraid I might shoot some fellow between the eyes.'" Another witness testified that defendant said: "It was a good thing the boss took that gun away from me as I was liable to shoot some fellow right between the eyes."

The defense was that what the state's witnesses had seen protruding from defendant's pocket was not a pistol or revolver but was an implement he had fashioned from a gun barrel to attach to the upper end of the gear shift lever of his truck for the purpose of lengthening it and bringing the top within easier reach of his hand. Testifying for himself he denied that he had had a revolver about his person on the occasion in question. He said he had cut off the end of the barrel of a Stevens twenty-two rifle, "hollowed out" the end of it (enlarged the hole), and cut threads "on the inside" so that it would screw onto the upper end of the gear shift lever and had fitted it with a knob from an old brass bed to serve as a handle, and that that was the thing he had in his pocket, the knob end hidden in the pocket and the other end projecting. He said that when he went to the pie supper that night he removed the device from his gear shift lever before going into the schoolhouse and put it in his pocket, fearing it might be stolen if he left it attached to the lever. Said device, identified and introduced in evidence by defendant, was exhibited during the argument of the case here. The barrel part, seen without the knob or handle and looked at casually, could be mistaken for a revolver barrel. Defendant admitted that he owned a revolver, but testified he had left it at home that night, in which testimony he was corroborated by his mother and brother. Another witness who had accompanied him to the supper corroborated his testimony that he removed said device from his gear shift lever and put it in his pocket before going into the schoolhouse. Defendant in his testimony did not deny having made the statement at the schoolhouse relative to "the boss" having taken his gun from him. He offered no testimony on that subject.

From the foregoing résumé of the evidence it is apparent that the state made a case to go to the jury and that defendant's request for a peremptory direction to the jury to return a verdict of not guilty was properly denied. Appellant argues that the state's witnesses having seen only that part of the instrument in defendant's pocket which projected therefrom might easily have believed it was a revolver barrel and honestly so testified when in fact it was the end, made from a gun barrel, of the device his testimony tended to prove he had. The argument overlooks the fact that some of the state's witnesses testified that they saw the cylinder of the revolver, the cartridges therein, and the...