State v. Riles

• Decision Date: 03 June 1918
• Citation: 204 S.W. 1,274 Mo. 618
• Parties: THE STATE v. CARL RILES, Appellant
• Court: Missouri Supreme Court

204 S.W. 1

274 Mo. 618

THE STATE v. CARL RILES, Appellant

Supreme Court of Missouri, Second Division

June 3, 1918

Appeal from Pemiscot Circuit Court. -- Hon. Sterling H. McCarty Judge.

Affirmed.

J. S Gossom for appellant.

Frank W. McAlister, Attorney-General, and C. P. Le Mire, Assistant Attorney-General, for respondent.

(1) The evidence was sufficient to sustain the verdict and this court has held that such verdict will not be disturbed. State v. Maurer, 255 Mo. 168; State v. Barton, 214 Mo. 321; State v. Chenault, 212 Mo. 137. (2) A pistol is a firearm within the meaning of the statute, even though same may be unloaded. But, under the evidence in this case, even though the aforesaid statement were not true still the appellant would be guilty for the reason that it is shown conclusively that the appellant had cartridges for said pistol in his possession and placed said pistol, together with cartridges therefor, on the counter before him upon entering the store in question. State v. Morris, 263 Mo. 351; State v. Sebastian, 81 Mo. 514; State v. Larkin, 24 Mo.App. 410; Redus v. State, 82 Ala. 53; State v. Tapit, 52 W.Va. 473; Commonwealth v. Murphy, 166 Mass. 171. (3) It is a well-settled rule of law that the memory of a witness may be refreshed by the use of written instruments, memoranda, or book entries. Hence there can be no reason why a witness may not be permitted to refresh his memory from the transcript of his former testimony. But even if this were not true the appellant was not prejudiced in this case, for the reason that none of the answers contained in the notes shown the witness, were read to the jury or introduced in evidence in any manner whatsoever. State v. Miller, 234 Mo. 597; State v. Kennedy, 154 Mo. 268; State v. Mathews, 88 Mo. 125; Kelley's Crim. Law & Prac., sec. 373. (4) The remarks of the prosecuting attorney were not sufficiently offensive to require a rebuke, hence there was no reversible error here. State v. McMullin, 170 Mo. 682; State v. Rasco, 239 Mo. 580; State v. Wana, 245 Mo. 562.

OPINION

FARIS, J.

Defendant was convicted in the circuit court of Pemiscot County upon the charge of having in his possession when intoxicated a dangerous and deadly weapon. He was prosecuted by indictment, which indictment, in addition to the count charging him as above, also in the first count thereof charged him with carrying a concealed weapon. He was convicted on the second count only, and his punishment assessed at a fine of one hundred dollars. From this conviction and the judgment bottomed thereon, he has appealed.

Since one of the most serious and strenuous contentions urged is that there was not sufficient evidence to sustain this conviction, and since in connection with this point, we find ourselves compelled to discuss the evidence in the opinion, it will not be necessary to burden the case with a lengthy statement of the facts. Suffice it to say that the testimony on the part of the State, which was all the testimony offered in the case, tends to show that upon a day in November, 1916, defendant, while intoxicated, came into a store of one Damon, in the village of Hayward, in said county, and walking up to a counter therein, threw down a pistol, together with some cartridges. One Cullen Downing, a bystander, who was a witness in the case, immediately seized this pistol, and took it away from defendant's vicinage. Considerable excitement ensued, and defendant, after repeatedly calling for this pistol, had it returned to him. A number of the witnesses, whose testimony is more at length referred to in the below opinion, testified to the above facts, as well as to the fact that defendant upon the occasion seemed to be drinking, or drunk.

At the close of the testimony for the State, defendant interposed thereto a verbal demurrer to its sufficiency; which demurrer being overruled the case went to the jury without any countervailing testimony whatever on the part of the defendant.

All further facts which are necessary to make clear the contentions which we find ourselves compelled to discuss, will be adverted to in the subjoined opinion.

I. Defendant is not represented in this court by counsel; so, as in duty bound, we have ourselves carefully examined the record for error. [Sec. 5312, R. S. 1909.]

The only points urged in the motion for a new trial which when examined in the light of the record seem to present debatable questions of law are: (a) Was there sufficient evidence adduced to take the case to the jury; (b) was it error to instruct the jury that the offense charged was made out, although there was no direct proof that the pistol was loaded; (c) was it error to exhibit to the witnesses for the State for the purpose of refreshing their memories, copies of their testimony before the grand jury, and (d) were the remarks of counsel for the State so hurtful as to constitute reversible error?

Imprimis, we may observe that the witnesses for the State (none was offered by the defendant) exhibited a strange and puzzling reluctance to testify and to answer frankly and categorically the questions propounded to them. They were without exception equivocating, evasive and shuffling. Yet, we are of the opinion that they stated facts sufficient to take the case to the jury. The issues were but two: (1) Did defendant have in his hands or on his person a pistol, and (2) was he intoxicated at the time he thus had this pistol?

Upon the first point one Henry Burgess swore that defendant "put the thing up on the counter." Being asked whether he had this object in his hand the witness Burgess answered that he did, and being further asked if it was a pistol, he answered, "I think it was." Again, being asked this question: "Now, did you see the pistol lying on the counter?" he answered, "Yes sir," and continuing said that there were also cartridges on the counter. This witness also said he thought defendant was drunk at the time. On cross-examination this witness said that the object in question "looked like a real pistol" to him.

One Cullen Downing, swore that he saw a pistol on the counter near where defendant was standing, but he never saw defendant put the pistol there. Another witness said: "I saw Mr. Carl Riles come in; of course he was drinking some. He walked up to the counter and I think he called for soda or something and at the same time he throwed down something what I thought to the best of my knowledge at that time, his pistol and some shells, a handful of shells, four or five, and Mr. Cull Downing grabbed it up and went off and stayed four or five minutes and Mr. Riles was calling for his gun, wanted to know what came of it, and finally Mr. Downing brought it back and gave it to him." This witness also said that defendant appeared to be drinking.

Throughout the case the object drawn by defendant from his pocket and...