State v. Reagan
| Decision Date | 04 December 1919 |
| Citation | 217 S.W. 83,280 Mo. 57 |
| Parties | THE STATE v. JAMES J. (alias SPOT) REAGAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John W. Calhoun Judge.
Affirmed.
T. J Rowe and Thos. J. Rowe, Jr., for appellant.
(1) Instruction 2 is erroneous because the court should have instructed the jury that if they believed from the evidence defendant did not intend to carry the weapon concealed, then they should acquit the defendant. (2) The evidence on behalf of the State proved that defendant did not intend to carry the revolver concealed. State v. Carter, 168 S. R 681. (3) In most of the states it devolves upon the accused to show as a matter of defense that he comes within one of the exceptions created by the statute prohibiting the carrying of concealed weapons. But in Michigan it appears that the prosecution must prove that the defendant does not fall within one of the exceptions. People v. Pendleton, 79 Mich. 317. (4) Instruction 1 is erroneous because the jury were instructed if they believed the defendant unlawfully and wrongfully and intentionally carried about his person a deadly weapon he was guilty of the offense charged in the information, and defendant could not be guilty of the offense charged in the information unless he feloniously carried about his person a deadly weapon. Again, said instruction is erroneous because it is on the whole case and defendant's defense that he was about to start on a journey was entirely eliminated from the instruction.
Frank W. McAllister, Attorney-General, Shrader P. Howell, Assistant Attorney-General, for respondent.
(1) The court properly submitted to the jury the question as to whether the defendant intended to carry the weapon concealed about his person. State v. Miles, 124 Mo.App. 285; State v. Carter, 259 Mo. 360; State v. Hovis, 135 Mo.App. 547. (2) Instruction 1 is not erroneous because the word "feloniously" is not used therein. State v. Reed, 140 Mo.App. 253; State v. Cummings, 206 Mo. 623; State v. Rader, 262 Mo. 132; State v. Baker, 264 Mo. 354; State v. Massey, 274 Mo. 589; State v. Burgess, 268 Mo. 415. (3) The evidence submitted on the trial is amply sufficient to sustain the verdict. State v. Miles, 124 Mo.App. 285; State v. Arnett, 258 Mo. 259; State v. Concelia, 250 Mo. 411.
MOZLEY, C. Railey and White CC., concur.
The defendant was informed against by the Circuit Attorney at the February term, 1918, of the Circuit Court of the City of St. Louis, upon a charge of having unlawfully and feloniously carried concealed about his person a dangerous and deadly weapon, to-wit, one revolving pistol, loaded with gunpowder and leaden ball, contrary to the statute and against the peace and dignity of the State. On May 27, 1918, the defendant was duly arraigned, in Judge Calhoun's division of said court, and entered his plea to said charge of not guilty. Upon trial of said charge before a jury of twelve men, which occurred on the 10th day of June, 1918, the defendant was convicted, and the jury returned the following verdict: "We, the jury in the above entitled cause, find the defendant guilty of carrying concealed weapons, as charged in the information, and assess his punishment at six months in the city jail." Motion for new trial was overruled, and the case is here on defendant's appeal.
Defendant alleges reversible error as follows, to-wit: (a) Instructions one and two, given by the court are erroneous; (b) the verdict of the jury is against the overwhelming weight of the evidence; and (c) the overwhelming weight of the evidence tends to establish the fact at the time defendant was arrested and was carrying a revolver, he was about to start on a trip from the State of Missouri to the State of Kansas, and had a right, under Section 4496, Revised Statutes 1909, to carry it.
The evidence on the part of the State was that Andrew Stevenson and Dick Broeders, police officers doing duty as members of the "gun squad" which duty required them to search those suspected of carrying concealed weapons, on February 26, 1918, between 9:30 and 10 o'clock at night, at a saloon belonging to Yitz Weisman, searched defendant, and found concealed in the front pocket of his trousers a six-shot Colts revolver, with all of the chambers loaded, and thereupon arrested and confined him until bond was arranged for his subsequent appearance in the circuit court for trial. In that court it was conceded that defendant had the revolver and had it concealed when arrested, and the same concession is made at our bar.
On the part of defendant the testimony tended to show that he was intending to go that night to Pittsburg, Kansas to buy horses and mules for the United States Government, and that he borrowed the gun at Baur's saloon, which is located on Market between 13th and 14th Streets, and carried it about a block from there to a saloon run by Yitz Weisman, located on the corner of 14th and Chestnut Streets, and left it there and shortly thereafter returned and called for the gun, got it and put it in his pocket, and while taking a drink at the bar was searched by the officers, with the result above stated. Defendant further stated that he intended to leave over the Missouri Pacific Railroad at 11:15 for Pittsburg, Kansas, but he did not make the trip until one week later.
All of these matters were, at his trial in the circuit court, submitted to a jury of twelve men, who found him guilty as charged in the information and assessed his punishment at six months in the city jail.
Motion for new trial proved without avail, and defendant is in this court on appeal.
I. The first assignment of error is that instructions one and two given by the court are erroneous. Number one, it is contended is radically prejudicial, because it charges the jury that defendant may be convicted if they find that he unlawfully and wrongfully and intentionally carried concealed about his person a certain deadly and dangerous weapon etc. It will be noted...
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