State v. Mason, 60515

• Decision Date: 12 September 1978
• Docket Number: No. 60515,60515
• Parties: STATE of Missouri, Respondent, v. Johnny Lee MASON, Appellant.
• Court: Missouri Supreme Court

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.

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."

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. Smith, 431 S.W.2d 74, 78 (Mo.1968), a prosecution for transporting a female person through this state for the purpose of practicing prostitution, a transportation from the City of St. Louis to St. Louis County was held to be "through or across this state * * *." Cases from other jurisdictions indicate generally that a traveler need not be traveling from a point outside the state to another point outside of it, but may be traveling on a journey within the state's borders and still meet the exemption requirements. 79 Am.Jur.2d Weapons & Firearms § 17, p. 22; 94 C.J.S. Weapons § 9(c), p. 497. The emphasis in these cases is on "journey" or "traveler" and not on the distance traveled.

We believe appellant's journey from Kansas City to Chicago clearly raises the issue of whether he is in an exempt class, and should have been submitted to the jury. Respondent contends that appellant's planned stops in St. Louis remove the exemption. However, appellant was not apprehended with a gun During one of these stops but was clearly journeying at the time he was stopped. We do not believe he was taken out of the class of exempted persons by these intended stops.

We note that appellant did not timely file his motion for new trial. Therefore, the alleged error in the instruction must be reviewed under Rule 27.20(c), the plain error rule. State v. Collett, 542 S.W.2d 783 (Mo.banc 1976). We have reviewed the record in this case and believe, under the facts and circumstances, that the error in the instruction resulted in manifest injustice or miscarriage of justice.

The judgment is reversed and the cause remanded for new trial.

MORGAN, C. J., and SEILER, J., and SIMEONE, Special Judge, concur.

FINCH, J., dissents in separate dissenting opinion filed.

BARDGETT and RENDLEN, JJ., dissent and concur in separate dissenting opinion of FINCH, J.

FINCH, Judge, dissenting.

I respectfully dissent.

A statute making it an offense to carry concealed weapons in public assemblages was adopted in 1874. Laws 1874, p. 43. At that time there was no exception for travelers.

In 1879 the legislature enacted § 1275, RSMo 1879, which created such an exception. It followed § 1274, the section which prohibited the carrying of concealed weapons, and stated:

"The next preceding section shall not apply to . . . persons moving or traveling peaceably through this state . . . ."

As noted in the principal opinion, this exemption was interpreted and applied in State v. Miles, 124 Mo.App. 283, 101 S.W. 671 (1907) and in State v. Cousins, 131 Mo.App. 617, 110 S.W. 607 (1908). In Cousins, the exception was held to be applicable to a traveler who was engaged in a journey originating in Missouri and terminating in another state, and in Miles, to one on a journey originating outside Missouri and terminating in Missouri.

In the next legislative session following the decision in Cousins, the statute was amended, Laws 1909, p. 452, so that the exception was changed from "persons moving or traveling peaceably through this state" to "persons traveling in a continuous journey peaceably through this state." The exception has remained unchanged up to the present time.

The state argues that when the legislature amends a law, it is presumed that they intended to change the existing law, citing In re Tompkins' Estate, 341 S.W.2d 866, 872 (Mo.1960). It points out that the amendment occurred immediately following the Miles and Cousins decisions and...