State v. Quaite
| Decision Date | 25 January 1886 |
| Citation | 20 Mo.App. 405 |
| Parties | STATE OF MISSOURI, Respondent, v. EPHRAIM QUAITE, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from the Cass Circuit Court, Hon. NOAH M. GIVAN, Judge.
Reversed and remanded.
The case is sufficiently stated in the opinion of the court.
WOOLDRIDGE & DANIEL, for the appellant.
I. It is not disputed that defendant had, and carried for a time, a concealed weapon. But the right to defend one's person is a natural and fundamental right, and the right to bear arms in defence of one's home, person and property concealed or not concealed, is a constitutional right. Const. Mo. 1875, art. 2, sect. 17. Nor has there been any attempt of the legislature to take it away in the revision of the statutes of 1879, or since.
II. Section 1274, of the Revised Statutes, is only intended to prohibit the practice of carrying concealed weapons and the following section (1275) provides that " it shall be a good defence to such a charge if defendant shall show that he has been threatened with great bodily harm, or had good reason to carry the same in the necessary defence of his person, home or property." State v Wilforth, 74 Mo. 528. From the evidence in this case defendant is clearly placed in the exception contained in sad section 1275, of Revised Statutes.
III. By an inspection of the record and bill of exceptions, it will be perceived that there was no venue proven, or attempted to be proven, which, of itself, is sufficient for a reversal. State v. Babb, 76 Mo. 501; State v. Wheeler, 79 Mo. 366; State v. Britton, 80 Mo. 60.
W. L. JARROTT and RAILEY & BURNEY, for the respondent.
I. It is conceded that a person, under certain circumstances, has a right to carry concealed weapons. The instructions fairly presented this to the jury without objection. But the evidence in this case showed that defendant's pretense for carrying a pistol was a subterfuge. State v. Cook, 58 Mo. 546; State v. Warner, 74 Mo. 83; State v. Thomas, 78 Mo. 342.
II. There is no pretense that any of the instructions given were wrong, and the testimony tending to support the verdict, this court will not reverse the finding of the jury. See cases supra.
III. Defendant objects to an instruction given by the court after the jury had retired and were unable to agree. His counsel were present and objected to it. But the instruction properly declared the law, and the defendant could not have been injured by it. Section 1920, of the Revised Statutes, authorizes the action of the court in this case. The giving of such instruction in a civil case would not have been ground for reversal. Dowzelot v. Rawlings, 58 Mo. 78; Allen v. Snyder, 82 Mo. 259.
IV. The venue was distinctly proven, but the bill of exceptions fails to show that fact. But the motion for new trial fails to refer to that fact, and it is too late to question it now. Sect. 1967, Rev. Stat.; State v. Maupin, 65 Mo. 65, and cases cited; Carver v. Thornhill, 53 Mo. 283. After verdict such judgments ought to stand, and the supreme court appears to ignore the statute changes. See sect. 1821, Rev. Stat.
V. The courts will take judicial notice whether a city or town is in a state. State v. Laffer, 38 Ia. 426.
The defendant was indicted for carrying a concealed weapon upon his person at the county of Cass. The evidence tended to show the commission of the alleged offence at the town of Freeman. There was no other proof of the venue.
The judgment in a criminal case must be reversed when the bill of exceptions fails to show that the venue, as laid in the indictment, was, directly or indirectly, proved. State v. Hughes, 82 Mo. 88; State v. Apperger, ??0 Mo. 174; State v. Wheeler, 79 Mo. 366; State v. Babb, 76 Mo. 503; State v. Inman, 76 Mo. 548; State v. Hartnett, 75 Mo. 251; State v. Burgess, 75 Mo. 541; State v. McGinniss, 74 Mo. 246; State v. McGrath, 73 Mo. 182; State v. Miller, 71 Mo. 90; State v. Hughes, 71 Mo. 634; State v. Myer, 64 Mo. 190.
Proof that the alleged offence was committed in the town of Freeman, in the absence of evidence tending to show that said town was in Cass county, was not proof of the venue as laid in the indictment. State v. Hartnett, 75 Mo. 251; State v. Burgess, 75 Mo. 541.
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