State v. Mason, No. 60515

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDONNELLY; MORGAN, C. J., and SEILER, J., and SIMEONE; FINCH; BARDGETT and RENDLEN, JJ., dissent and concur in separate dissenting opinion of FINCH; FINCH
Citation571 S.W.2d 246
PartiesSTATE of Missouri, Respondent, v. Johnny Lee MASON, Appellant.
Docket NumberNo. 60515
Decision Date12 September 1978

Page 246

571 S.W.2d 246
STATE of Missouri, Respondent,
v.
Johnny Lee MASON, Appellant.
No. 60515.
Supreme Court of Missouri, En Banc.
Sept. 12, 1978.
Rehearing Denied Oct. 10, 1978.

Page 247

Robert A. Simons, Kansas City, for appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

Appellant was convicted of carrying a concealed weapon under § 564.610, RSMo 1969, in the Circuit Court of Jackson County, and was sentenced to fifty days in the Jackson County Department of Corrections. On appeal, the Court of Appeals, Kansas City District, reversed and remanded for new trial. The case was then transferred to this Court, by order of this Court, and will be decided here "the same as on original appeal." Mo.Const. Art. V, § 10.

On October 17, 1975, appellant was stopped for exceeding the speed limit on highway I-70 eastbound just outside of Kansas City. Appellant's young son and a friend were traveling with him. Appellant removed a handgun from his pocket and dropped it to the ground after being asked to submit to a frisk. The officers recovered the gun, the subject of this charge.

Appellant testified that he was taking the gun to his sister in St. Louis, at her request, and that he intended to drop the gun at her house and drop his son at his mother's house in St. Louis before he and his friend continued on to Chicago for a week-end visit. Appellant readily admitted having the gun on his person, and stated that when he was asked to submit to a frisk he panicked and tried to dispose of it.

At the conclusion of the evidence, the prosecutor submitted Instruction No. 5 in the form of MAI-CR 13.10. Appellant requested a modified instruction which would include an additional element requiring that in order to support a conviction the jury must find that "the defendant was not a person traveling in a continuous journey peaceably this (sic) state." The trial court heard arguments concerning the applicability of the element sought to be added by appellant and the court then rejected appellant's request on the following basis: "The whole question * * * is an interpretation of the language of the statute which exempts from the criminal provisions of Section 564.610: 'Persons traveling in a continuous journey peaceably through this state.' * * * The Court, relying upon the definition of the statutory language as extracted from Webster's Unabridged Dictionary, concludes that the factual situation of an individual such as this defendant passing from point to point within the state of Missouri is not a person traveling in a continuous journey through the state."

The determinative question is whether a person whose journey begins in Kansas City and is to end in Chicago is a person "traveling in a continuous journey peaceably through this state."

Page 248

The exemption contained in § 564.610, RSMo 1969, for "persons traveling in a continuous journey peaceably through this state" has remained unchanged since it was first enacted in 1909. § 4496, RSMo 1909. Prior to 1909, the statutory exemption applied "to persons moving or traveling peaceably through this state." § 1275, RSMo 1879. The present exemption has not been interpreted as to its meaning, except insofar as State v. Cooper, 563 S.W.2d 784 (Mo.App.1978), interpreted it to encompass a journey which both began and was to end outside the state. The prior exemption was interpreted by two cases, relied on by appellant to sustain his contention that the present exemption applies to a person whose journey begins in Missouri and is intended to end outside the state, as was appellant's.

In State v. Cousins, 131 Mo.App. 617, 110 S.W. 607 (1908), a defendant who boarded a train in Oregon County, Missouri, with the intention of traveling to Arkansas, was held entitled to an instruction acquitting him on the charge of carrying a concealed weapon if he was "peaceably traveling in the state, or just about starting on a trip." In State v. Miles, 124 Mo.App. 283, 101 S.W. 671 (1907), a defendant traveling from Memphis, Tennessee, to Hayti, Missouri, was recognized as entitled to such an instruction if he was traveling peaceably.

Respondent contends that the change made by the legislature in the exemption, adding the words "continuous journey", was intended as a response to the Cousins and Miles cases, and that the present exemption is intended to apply only to travelers whose journeys both begin and end outside of Missouri, as in Cooper. Respondent further contends that the definitions of "continuous" and "through" indicate that the exemption is to apply only to travelers who are merely passing through Missouri and who do not begin or end their trips in the state. As defined in Webster's Third New International Dictionary, "continuous" means:

"1 a: characterized by uninterrupted extension in space: stretching on without break or interruption * * *

b: characterized by uninterrupted extension in time or sequence: continuing without intermission or recurring regularly after minute interruptions * * * "

The word "through" is defined by the same dictionary as:

"1 a * * * (3) used as a function word to indicate extension from one end or boundary (as of a place or area) to another (a road * * * the desert) (a path * * * the woods)"

However, the word "through," as used in another criminal statute, § 563.070, RSMo 1969, has been interpreted as indicating movement from point to point within a broad expanse or area within the State of Missouri. In State v....

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10 practice notes
  • State v. Pickins, No. 12730
    • United States
    • Court of Appeal of Missouri (US)
    • March 11, 1983
    ...the essential elements of the offense charged, ...." State v. Singleton, 602 S.W.2d 3, 8 (Mo.App.1980). Also see State v. Mason, 571 S.W.2d 246 (Mo. banc 1978); State v. Burgess, Sections 569.160 and 569.170 of The Criminal Code, effective January 1, 1979, define the offenses of first and s......
  • State v. Ogle, No. 11790
    • United States
    • Court of Appeal of Missouri (US)
    • December 29, 1981
    ...elements of an offense embraced within the charge' " ' ". State v. Burgess, 457 S.W.2d 680, 682 (Mo. banc 1970). Also see State v. Mason, 571 S.W.2d 246 (Mo. banc 1978). It has been observed "(t)here is one principle of law relative to verdict directing instructions in criminal cases so bas......
  • State v. Horne, No. 62551
    • United States
    • Missouri Supreme Court
    • October 13, 1981
    ...being understood by reasonable persons of ordinary intelligence. The words are of plain meaning and of common usage. See State v. Mason, 571 S.W.2d 246 (Mo. banc 1978) and State v. Cooper, 563 S.W.2d 784 (Mo.App.1978), where the questioned term was analyzed and The judgment is affirmed. PER......
  • State v. Mondaine, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • April 12, 1983
    ...failed to raise his objection in his motion for new trial, as required to preserve this issue for appellate review. State v. Mason, 571 S.W.2d 246, 248-49 (Mo. banc 1978); State v. Harris, 620 S.W.2d 349 (Mo. banc In State v. Hill, 614 S.W.2d 744, 750 (Mo.App.1981), the court noted, "[i]t h......
  • Request a trial to view additional results
10 cases
  • State v. Pickins, No. 12730
    • United States
    • Court of Appeal of Missouri (US)
    • March 11, 1983
    ...the essential elements of the offense charged, ...." State v. Singleton, 602 S.W.2d 3, 8 (Mo.App.1980). Also see State v. Mason, 571 S.W.2d 246 (Mo. banc 1978); State v. Burgess, Sections 569.160 and 569.170 of The Criminal Code, effective January 1, 1979, define the offenses of first and s......
  • State v. Ogle, No. 11790
    • United States
    • Court of Appeal of Missouri (US)
    • December 29, 1981
    ...elements of an offense embraced within the charge' " ' ". State v. Burgess, 457 S.W.2d 680, 682 (Mo. banc 1970). Also see State v. Mason, 571 S.W.2d 246 (Mo. banc 1978). It has been observed "(t)here is one principle of law relative to verdict directing instructions in criminal cases so bas......
  • State v. Horne, No. 62551
    • United States
    • Missouri Supreme Court
    • October 13, 1981
    ...being understood by reasonable persons of ordinary intelligence. The words are of plain meaning and of common usage. See State v. Mason, 571 S.W.2d 246 (Mo. banc 1978) and State v. Cooper, 563 S.W.2d 784 (Mo.App.1978), where the questioned term was analyzed and The judgment is affirmed. PER......
  • State v. Mondaine, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • April 12, 1983
    ...failed to raise his objection in his motion for new trial, as required to preserve this issue for appellate review. State v. Mason, 571 S.W.2d 246, 248-49 (Mo. banc 1978); State v. Harris, 620 S.W.2d 349 (Mo. banc In State v. Hill, 614 S.W.2d 744, 750 (Mo.App.1981), the court noted, "[i]t h......
  • Request a trial to view additional results

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