State v. Mulconry

• Decision Date: 19 March 1925
• Docket Number: No. 25780.,25780.
• Citation: 270 S.W. 375
• Parties: STATE v. MULCONRY.
• Court: Missouri Supreme Court

270 S.W. 375

STATE v. MULCONRY.

No. 25780.

Supreme Court of Missouri, Division No. 2.

March 19, 1925.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Louis Mulconry was convicted of carrying a concealed weapon, in violation of Rev. St. 1919, § 3275, and he appeals. Affirmed.

Bass & Bass, of St. Louis, for appellant. Jesse W. Barrett, Atty. Gen., and Ellison A. Poulton, Asst. Atty. Gen., for the State.

HIGBEE, C.

The information charges that the defendant, on January 22, 1923, did unlawfully and feloniously carry concealed about his person a certain dangerous and deadly weapon, to wit, a revolving pistol, loaded with gunpowder and metal bullets, contrary, etc. The information follows the words of the statute. It clearly charges the defendant with a violation of section 3275, R. S. 1919, and is sufficient. Kelley's Crim. Law (3d Ed.) § 187. The motion to quash was properly overruled.

Appellant's abstract of the record reads:

"B. J. Wills testified for the state substantially as follows: That he was a detective connected with the St. Louis police department; that he assisted in the arrest of the defendant; that witness and his partner, Delaney, were in a battery establishment at 4624 Delmar avenue when a young man by the name of Wilson came in; that he followed Wilson out into the alley; that Wilson had one foot on the running board of a Ford coupe which was against the shed in the rear, the coupd was facing west; that Mulconry was on the right side of the car, William Crowe was sitting behind the wheel. The parties were ordered out of the car. As Crowe stepped out Mulconry raised up, a gun was on his right-hand side against the cushion. As he stepped out the gun fell upon the seat. The gun couldn't be seen until Mulconry got up to get out of the car. Mulconry was sitting on the right of the driver."

R. J. Delaney, a detective, testified that, as he and Wills stepped into the place at 4624 Delmar avenue, a man came through from the rear "whom they recognized as Arthur Wilson, alias Fagin, a police character." Op motion, the words italicized were stricken out and the jury directed to disregard them. A motion to direct a mistrial and a continuance was overruled. "Mr. Garstang (assistant circuit attorney): Q. Go on now, but do not say anything about who these men are or what they are. Mr. Bass: I want to object to that statement made by Mr. Garstang; it wasn't called for; it is prejudicial and improper." The objection was overruled. The testimony of the witness corroborated that of the witness Wills. Delaney picked the revolver up off the seat of the car. It was a 38 Colt, six-inch barrel, and was loaded with six cartridges. The defendant offered no testimony. The defendant's demurrer to the evidence was overruled.

The first instruction for the state is to the effect that, if the jury find from the evidence beyond a reasonable doubt that the defendant unlawfully, feloniously, wrongfully, and intentionally carried concealed about his person a certain deadly and dangerous weapon, to wit, one revolving pistol, etc., you will find the defendant guilty and assess his punishment, etc., and unless you do so find, you will find the defendant not guilty. Instruction No. 2 reads:

"The intent with which an act is done may be proved by direct and positive testimony, or the intent may be inferred from all of the facts and circumstances surrounding and attending the act as shown by the evidence in the case, and the intent in this case must be determined from the evidence in this case."

Instructions 3 and 4 are as follows:

"No. 3. The court instructs the jury that it is not necessary that the revolving pistol should be in the defendant's pocket of his clothing to constitute it a concealed weapon about his person. If you find and believe from the evidence, beyond a reasonable doubt, that the revolving pistol was behind his body on the seat of the automobile and concealed from view, so that it could not be seen, then in either case such weapon was a concealed weapon about his person within the meaning of the law, if you further find, beyond a reasonable doubt, that such weapon was in such close proximity to the defendant as to be within reach and convenient control of the said defendant."

"No. 4. The court instructs the jury that the law contemplates that the defendant shall have unlawfully, feloniously, wrongfully, and intentionally done something to conceal said weapon from view, and in this instance, if you find there was a pistol in the automobile, yet if it was in plain view of any one looking at or about the person of the said defendant, then and in that event the pistol was not, within the meaning of the law, concealed from view."

No. 5 is the usual instruction on the presumption of innocence, the burden of proof, the credibility of the witnesses, and weight of the evidence. "

1. Appellant insists that the statement of the witness Delaney "that a man came through whom they recognized as Arthur Wilson, alias Fagin, a police character" was prejudicial and reversible error.

This was a voluntary statement by the witness, not called for or in response to a question by the circuit attorney. The court promptly struck it out and directed the jury to disregard it. If a trial must be halted and the jury discharged for every impertinent and irrelevant remark of a blundering witness, a verdict would rarely be reached. The policy of the law is that no judgment shall be reversed in the absence of error materially affecting the merits. Section 1513 R. S. 1919. A "judgment will not be reversed if the record as a whole overcomes the presumption of prejudice established by the commission of error and shows affirmatively that no substantial rights of appellant have been injuriously affected." "On the other hand, the rule announced by a large number of decisions is that the record must show, not only error, but also that the party complaining was prejudiced thereby." 4 C. J. 911, 912. The last statement formulates the rule declared by the statute and the decisions of the courts of this state; that is, that error, to justify a reversal, must be material. Shinn v. Railroad, 248 Mo. 173, 181, 154 S. W. 103; Nat. Bank v. Security Life Ins. Co., 283 Mo. 336, 352, 222 S. W. 832; Waldmann v. Shrainka Const. Co., 289 Mo. 622, 633, 233 S. W. 242; Bauer, etc., Co. v. Storage Co., 186 Mo. App. 664, 671, 172 S. W. 417.

It is apparent that the error, if it may be so called, is so trivial and inconsequential as not to constitute prejudicial or reversible error. Wilson was not even a witness in the case. The court struck out the statement and directed the jury to" disregard it. That is ordinarily sufficient. State v. Merrill (Mo. Sup.) 263 S. W. 118, 120, II, where the cases are reviewed; State v. Worten (Mo. Sup.) 263 S. W. 124, 127, IV; State v. Taylor, 293 Mo. 210, 217, 238 S. W. 489; State v. Laycock, 141 Mo. 274, 42 S. W. 723. It is not suggested in the brief of appellant's learned counsel that the revolver was not found on the seat of the car occupied by the defendant. Defendant told the officer he was carrying it for protection. If it were a disputed issue and the evidence were close, a different question would be presented. Langston v. Southern Electric R. Co., 147 Mo. 457, 467, 48 S. W. 435. The real contention, however, is that the revolver was...