State v. White
| Citation | 253 S.W. 724,299 Mo. 599 |
| Parties | THE STATE v. RANO WHITE, Appellant |
| Decision Date | 14 July 1923 |
| Court | United States State Supreme Court of Missouri |
Appeal from Knox Circuit Court. -- Hon. James A. Cooley, Judge.
Affirmed.
Joseph Uptegrove and A. Doneghy for appellant.
(1) It was error to overrule the motion to quash the information for the reason that that part of Sec. 3275, R. S. 1919, reading "or shall, in the presence of one or more persons exhibit any such weapon in a rude, angry or threatening manner," is in direct conflict with Section 17, Article 2, of the Constitution, in that it emasculates the right guaranteed by the Constitution to bear arms in an effectual manner in defense of home, person and property, and whittles the right down until it is as worthless as was the young lady's permission to swim. It is the rude, angry and threatening manner which puts the despoiler to flight, and leaves the citizen in enjoyment of his constitutional rights. "Any act the necessary operation of which impairs or tends to impair a constitutional guaranty is void." 12 Corpus Juris, 750; State v. Julow, 129 Mo. 163; State v. Berkley, 92 Mo. 41; State v Wilforth, 74 Mo. 528. It might be suggested that the court, in order to save the statute, will add the further exception, to-wit: "The provisions of this section shall not apply to persons who display such weapon in defense of home, person or property," but the Legislature having written in all the exceptions it deemed necessary, the courts are powerless to add others, for that would be making rather than construing law. Sutherland, State Con., secs. 328, 427 430, 431, expressio unius, etc.; 36 Cyc. 1122, 1113, note 88; State ex rel. v. Fisher, 119 Mo. 351; Kehr v. Columbia, 136 Mo.App. 322. And there is peculiar ground for the court, in this case, adhering to the reading of the section as the Legislature wrote it, because when the Legislature wrote the section it was its intention to take from the citizen the right of self-defense. Prior to the enactment of the statute, as it now stands, Laws 1909, p. 452, the statute had carried such exception. See Laws 1877, p. 240. Self-defense is always permissible in common-law crimes, but this is a purely statutory offense, and in such cases motive and intent cut no figure. State v. Bruder, 35 Mo.App. 477; 12 Cyc. 148; Howell v. Stewart, 54 Mo. 404. (2) If this court should read the statute valid by writing in the defense of home, person and property, then, it was error for the trial court to refuse defendant's Instructions 10, 11. State v. Arnett, 258 Mo. 253; Archbold's Crim. Pldg. (5 Ed.) 327; 1 Hawkins, Pleas of Crown (7 Ed.) 175; Morgan v. Durfee, 69 Mo. 479. And if there were any objections to the wording of the instructions it was the duty of the court to frame and give a properly worded one. State v. Goode, 220 S.W. 854; State v. Moore, 160 Mo. 460. (3) It was error, over the objections of defendant, to permit the State to ask questions concerning matters not touched on in his direct examination, and questions which were incompetent for any purpose. State v. McGrath, 228 Mo. 413; State v. Larson, 238 S.W. 101. (4) The prosecuting attorney of Knox County, who helped try the case, over objections, made remarks to the jury which were highly prejudicial. In one instance he said: "And I would say that a verdict of not guilty in this case would do more to destroy the respect for the law in my county, in my own county here, than anything that could happen," was peculiarly prejudicial. State v. Hess, 240 Mo. 147.
Jesse W. Barrett, Attorney-General, Stratton Shartel, Special Assistant Attorney-General, and Robert W. Otto, Assistant Attorney-General, for respondent.
(1) Defendant can be cross-examined on all facts and circumstances which are connected with the matters stated in his direct examination and which weaken the force of his testimony. Defendant, on direct examination, testified that he and the sheriff were the best of friends, and never had any trouble, attempting to dispel any motive for the crime. Relations between the defendant and the sheriff having been brought out upon direct examination, it was not error upon the part of the State to cross-examine the defendant upon troubles which had before taken place between the defendant and sheriff, especially in view of the fact that the former relations between the defendant and the sheriff had a very important bearing upon the principal issues, and upon the motive and intent of the defendant in this case. Secs. 4036, 5439, R. S. 1919; State v. Keener, 225 Mo. 500; State v. Meyers, 221 Mo. 612; State v. Spivy, 191 Mo. 111; State v. Blitz, 171 Mo. 542; State v. Thornhill, 174 Mo. 370. (2) It is no defense that defendant had been threatened with great bodily harm, or had reason to carry the weapon in the necessary defense of his person, home or property. State v. Gentry, 242 S.W. 398; State v. Keet, 269 Mo. 206, 209; State v. Conley, 280 Mo. 21; State v. Jackson, 283 Mo. 18, 25. (3) Section 3275 is not in conflict with Section 17, Article 2, Constitution of Missouri. State v. Keet, 269 Mo. 206, 209; State v. Gentry, 242 S.W. 399. This assignment is not before this court for review. The assignment does not state the nature of the facts which create the conflict. State v. Swift & Co., 270 Mo. 694; Canning & Packing Company v. Evans, 238 Mo. 599; State v. Christopher, 212 Mo. 244. (4) In order to justify a reversal of judgment, it should appear that the remarks were prejudicial to the defendant. The verdict of the jury could not have been unduly influenced by the remarks objected to. State v. Mallon, 75 Mo. 358; State v. Elvins, 101 Mo. 246; State v. Prunty, 276 Mo. 359, 376; State v. Hess, 240 Mo. 147, 160; State v. Summar, 143 Mo. 220, 234; State v. Hart, 237 S.W. 481.
-- After a change of venue from Adair County, defendant was convicted in the Circuit Court of Knox County of the crime of exhibiting a dangerous and deadly weapon, as denounced by Section 3275, Revised Statutes 1919, and his punishment was assessed by the jury at imprisonment in the county jail for six months and a fine of $ 250. After having moved unsuccessfully for a new trial and in arrest of judgment, he was sentenced on the verdict and has appealed. The appeal was granted to this court because a constitutional question was raised and because the conviction was for a crime punishable by imprisonment in the penitentiary, even though such punishment was not imposed. [State v. Woodson, 248 Mo. 705, 154 S.W. 705; State v. Underwood, 254 Mo. 469, 162 S.W. 184.]
The facts are few and simple. On or about the night of July 2, 1921, at about eleven o'clock, Emery D. Waddill, Sheriff of Adair County, and A. C. McClelland, night watchman for the city of Kirksville, were walking along the streets of that city in the neighborhood of Centennial Avenue and Martha Street, near which point defendant and his wife resided. Having their interest attracted to an automobile parked at that corner and occupied by several men, the officers halted it as it was about to be driven away. The reason for stopping the automobile is unimportant. However, an arrest of one or more of the occupants was made.
While Waddill was standing on one side of the automobile and McClelland on the other, defendant approached from behind Waddill with a shot gun in his hands and before his presence was discovered leveled the gun at Waddill, cursed him and said he was going to kill all the damned officers and would start with Waddill. Waddill was unarmed, but McClelland stepped around the automobile, drew his revolver and covered defendant with it. Defendant then lowered his gun and walked away. He was arrested two or three days later.
Defendant testified that someone had been pounding on the door of his house and his wife awakened him. He then saw someone leaving his yard and going toward the standing automobile, and saw two or three men also. He claimed to have been robbed a short time previously and thought that "somebody was trying to rob or steal something." He secured and loaded his shot gun and went out to investigate. In his own words, "I went down and run into the 'Law' unexpected." If further facts appear necessary to an understanding of the issues involved, they will be set out in the opinion.
I. Both in the Circuit Court of Adair County and in the Circuit Court of Knox County, defendant filed his motion to quash the information. Such motions were overruled in both courts and timely exception was saved in the trial court. The motion to quash is based on the alleged fact that Section 3275, Revised Statutes 1919, is invalid, because it violates Section 17, Article II of our Constitution, in that said section of the Constitution guarantees to the citizen the right to keep and bear arms in defense of his home, his person and his property. Said Section 17, Article II, is as follows:
"That the right of no citizen to keep and bear arms in defense of his home, person and property, or in aid of the civil power, when thereto legally summoned, shall be called in question; but nothing herein contained is intended to justify the practice of wearing concealed weapons."
There is no evidence whatever in the record that at the time of the assault defendant was defending his home against invasion, his person against injury, and no substantial evidence that he was defending his property against loss or destruction. Defendant testified:
The assault upon Waddill occurred at a distance from his home and defendant was the aggressor. He does not pretend to...
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