State v. Venable

• Decision Date: 02 April 1906
• Citation: 93 S.W. 356,117 Mo. App. 501
• Parties: STATE v. VENABLE.
• Court: Missouri Court of Appeals

93 S.W. 356

117 Mo. App. 501

STATE v. VENABLE.

Kansas City Court of Appeals. Missouri.

April 2, 1906.

1. CRIMINAL LAW—INSTRUCTIONS — IGNORING DEFENSES.

Where, in a prosecution for carrying concealed weapons, defendant could admit the entire hypothesis submitted in the state's instruction, and yet be innocent on account of his defense that the prosecutor had threatened defendant's life, and that he was therefore authorized by Rev. St. 1899, § 1863, to carry the weapon, and such instruction made no reference to other instructions in the case, it was error for the court to peremptorily direct the jury to find defendant guilty if they believed he carried such concealed weapon.

2. SAME—TRIAL—CURING ERROR.

Such error was not cured by instructions given for defendant submitting such defense.

3. WEAPONS—CARRYING CONCEALED WEAPONS —BODILY HARM—THREATS—DEFENSE.

Rev. St. 1899, § 1863, provides that it shall be a good defense for carrying a weapon if defendant shall show that he had been threatened with great bodily harm, or had good reason to carry the same in the necessary defense of his person, home, or property. Held, that defendant, having been threatened with great bodily harm, was entitled to carry a weapon if he in good faith believed the threat might be executed, though in fact there was really no danger thereof.

4. SAME—EVIDENCE.

Where, in a prosecution for carrying a concealed weapon, defendant claimed that he had been threatened with great bodily harm, and thereupon armed himself as authorized by Rev. St. 1899, § 1863, evidence that witness had a conversation with S., who talked in a threatening and excited manner with reference to killing defendant, and said that he ought to kill defendant, was admissible, if the threats were communicated to defendant before the date of the alleged offense.

5. SAME.

In a prosecution for carrying concealed weapons, it was error for the court to exclude

the question as to why witness stated that he did not know how many times the revolver in question would shoot.

6. SAME—PLACE.

In a prosecution for carrying concealed weapons, in violation of Rev. St. 1899, § 1862, it was no defense that the weapon was so carried while defendant was on his own farm; there being no exception with reference to the place where the weapon is carried in the statute.

Appeal from Circuit Court, Harrison County; Geo. W. Wanamaker, Judge.

M. W. Venable was convicted of carrying concealed weapons, and he appeals. Reversed.

John M. Sallee, for appellant. S. P. Davisson, for respondent.

ELLISON, J.

The defendant was charged under section 1862, Rev. St. 1899, in an information, with carrying concealed weapons, a revolver. He was convicted in the trial court.

1. Among other defenses was that the prosecuting witness had threatened the life of defendant, and that in consequence he had a right, under section 1863 of the statute, to carry the revolver. There was evidence tending to sustain the defense, yet the court gave an instruction for the state, peremptorily directing the jury to find defendant guilty if they believed he carried the concealed weapon, wholly ignoring his defense of threats. This was error. If an instruction for the state requires the jury to find facts which necessarily...