State v. Owen

• Decision Date: 08 June 1953
• Docket Number: No. 43463,No. 1,43463,1
• Citation: 258 S.W.2d 662
• Parties: STATE v. OWEN
• Court: Missouri Supreme Court

Page 662

258 S.W.2d 662

STATE v.OWEN.

No. 43463.

Supreme Court of Missouri, Division No. 1.

June 8, 1953.

Sapp & Bear and David V. Bear, Columbia, for appellant.

John M. Dalton, Atty. Gen. and Will F. Berry, Jr., Asst. Atty. Gen., for respondent.

CONKLING, Judge.

H. F. Owen, Jr., defendant below, appealed from a finding of gulty after a trial before the Court upon a charge of unlawfully and feloniously exhibiting a deadly weapon in a rude, angry and threatening manner, in violation of Section 564.610.[Statutory references are all to RSMo 1949 and V.A.M.S. unless otherwise indicated.]Trial by jury was waived by the parties with the assent of the Court.It was the sentence and judgment of the trial court that defendant's punishment be fixed at a fine of $250.

This appeal squarely presents to us the basic question of whether Section 564.610 applies to sheriffs, deputy sheriffs and 'other persons whose bona fide duty is to execute process, civil or criminal, make arrests, or aid in conserving the public peace' when such persons are not acting in the line of their official duty and are outside the geographical boundaries of the territory for which they were commissioned and in which they could claim any authority or jurisdiction as an officer.

That part of Section 564.610 of our statutes here material is as follows: 'If any person * * * shall, in the presence of one or more persons, exhibit any such weapons in a rude, angry or threatening manner, * * * he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding two years, or by fine of not less than one hundred nor more than one thousand dollars, or by imprisonment in the county jail not less than fifty days nor more than one year, or by both such fine and imprisonment; provided, that nothing contained in this section shall apply to legally qualified sheriffs, police officers and other persons whose bona fide duty is to execute process, civil or criminal, make arrests, or aid in conserving the public peace, nor to persons traveling in a continuous journey peaceably through this state.'

It is above provided that the offense is a felony and the appeal upon conviction therefor properly comes to this court, although only a fine was imposed upon the finding of guilty.State v. Plassard, 355 Mo. 90, 195 S.W.2d 495.

The record before us tends to establish: that on April 24, 1952, the defendant, then thirty-one years of age and prosecuting attorney of Taney County, Missouri, was in Columbia, Boone County, Missouri, for purposes of his own which had no connection with any duty as deputy sheriff; that on that date defendant was also a 'deputy sheriff of Taney County, Missouri,' having been so commissioned by the TaneyCounty, Missouri, sheriff on February 26, 1951, and again on April 9, 1952; that about 11:00 p. m., on the evening in question defendant was driving his automobile in the Negro section of the City of Columbia looking [as defendant testified] for a Negro acquaintance named Tom [whose last name defendant did not even know] but to whom defendant intended to give some whiskey.Defendant testified that he had been 'drinking some on this evening' but that he was not intoxicated.

From the State's testimony the Court could have found that the defendant drove his car to a point in front of a cafe known as the 'Blue and White,' a cafe apparently frequented by Negroes; that defendant there became involved in a discussion with a large number of Negro patrons and swore at and cursed them; that without provocation defendant'stuck his hand out [of his car] and ordered the Negroes to 'Run' and fired two shots' from a pistol and later fired three more shots; that some of the shots broke some of the windows in the cafe.

Defendant's testimony was that on this occasion he was in Boone County solely for purposes of his own which had no connection whatever with any official duty as deputy sheriff; that while in front of the 'Blue and White' cafe his car was surrounded by angry Negroes who were taunting him; that under those circumstances he was apprehensive of his personal safety; and that he then drew an automatic pistol from the glove compartment of his car and fired down at the ground to make the Negroes 'move * * * out of my way, out of the road.'

Defendant does not here contend that the evidence before us of record does not prove the offense charged, but, relying upon his Taney County Commission as deputy sheriff, defendant contends that he cannot be convicted under the above statute'since said section specifically exempts legally qualified sheriffs.'

Defendant cites and relies upon State v. Pollock, 49 Mo.App. 445, State v. Mosby, 81 Mo.App. 207, andState v. Whitehead, Mo.Sup., 295 S.W. 746.In each of those casesthe defendant had been prosecuted under the statute which is now Section 564.610, and in each of those casesthe defendant was a constable, but in those cases the alleged offense occurred in his home county where defendant had jurisdiction as such officer.In those cases it was held that constables stand on the same footing as sheriffs, and for that reason the constables in those cases were exempt from prosecution under the above statute.Those cases are therefore clearly distinguishable, and do not rule this case.

It is to be noted that in this casedefendant plants his defense and his claimed exclusion from prosecution under this statute squarely and wholly upon his commission and status as a deputy sheriff of Taney County, Missouri.That commission, in the record as defendant's Exhibit 1, was in words and figures as follows:

'G. L. Hunt

Sheriff of Taney County Forsyth, Missouri

April 9, 1952

I, G. L. Hunt, Sheriff of Taney County, Missouri, Hereby appoint H. F. Owen, Jr. as a Deputy Sheriff of Taney County, Missouri, and to serve as same through my term of office, unless this appointment shall be revoked by me.

s/ G. L. Hunt

Sheriff of Taney County, Missouri

I, H. F. Owen, Jr., hereby solemnly swear that I will support the Constitution of the United States of America and the Constitution of the State of Missouri, and that I will faithfully demean my self in office as a Deputy Sheriff of Taney County, Missouri to which I am here appointed, So Help Me God.

s/ H. F. Owen, Jr.

Deputy Sheriff of Taney County, Missouri Subscribed and sworn to before me this 9th...