State v. White
| Decision Date | 14 July 1923 |
| Docket Number | No. 24213.,24213. |
| Citation | 299 Mo. 599,253 S.W. 724 |
| Parties | STATE v. WHITE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Knox County; James A. Cooley, Judge.
Rano White was convicted of exhibiting a dangerous and deadly weapon, and he appeals. Affirmed.
Joseph Updegrove and A. Doneghy, of Kirksville, for appellant.
Jesse W. Barrett, Atty. Gen., Robert W. Otto, Asst. Atty. Gen., and Stratton Shartel, Special Asst. Atty. Gen., for the State.
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, R. S. 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 11 o'clock, Emery D. Waddill, sheriff of Adair county, and A. G. 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 shotgun 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 some one had been pounding on the door of his house, and his wife awakened him. He then saw some one 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 shotgun 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, R. S. 1919, is invalid because it violates section 17, art. 2, 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, art. 2, 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 say that he thought the men he saw had any of his property. He simply took his gun and went out and away from his house to look into the cause of the violent knocking on his door, as he claims.
The assault upon the statute, as violative of the Constitution, is because such statute does not make the exception of the right of the citizen to bear arms, even when exhibiting the same in a rude, angry, or threatening manner, when such act is in defense of home, person, or property. The information must fall if the statute is invalid. The question was raised by motion to quash the information, and is timely The motion' pointed out the supposed conflict with sufficient definiteness to raise the constitutional question when it alleged that the particular part of section 3275, upon which the information is based, violates section 17, art. 2, of the Constitution, which guarantees to the citizen the right to keep and bear arms in defense of his home, person, and property. [3] We do not find that the constitutionality of the statute, when thus attacked, has been passed upon by this court. That part of the same section making it a crime to carry concealed weapons has been fully sustained. Convictions for exhibiting deadly weapons in a rude, angry, or threatening manner have been sustained in this court. For example, see State v. Gentry (Mo. Sup.) 242 S. W. 398. We have found no case where the constitutionality of that part of the statute has been discussed, and no such cases have been cited by counsel. Section 17, art. 2, of the Constitution authorizes the Legislature to prohibit the wearing of concealed' weapons. Cases determining the constitutionality of that feature of the statute are cited, but they are not decisive of the exact question now before us, because of the exception in the constitutional provision.
So much of section 3275 as applies here is as follows:
Sections 1862 and 1863, R. S. 1899, were repealed by Laws of 1909, p. 342, and new section 1862 was enacted in lieu of the two former sections. New section 1862 (now section 3275, R. S. 1919) omitted from the exceptions the part of section 1863, R. S. 1899, above quoted. The words "carrying such weapon" in section 1863, R. S. 1899, clearly refer to the carrying of such weapon concealed. The repeal of that section did not change the law against exhibiting deadly weapons in a rude, angry, or threatening manner.
The evident purpose of section 17, art. 2, is to render the citizen secure in his home, his person, and his property. Its purpose is to deny to the Legislature the power to take away the right of the citizen to resist aggression, force, and wrong at the hands of another. By no possible construction can that section of the Constitution be held to guarantee to the citizen the right to keep and bear arms for the purpose of his own aggression, wrong, or assault upon the person or property of another. The right of the citizen to keep and bear arms for his own protection or in aid of the civil power, when thereto legally summoned, is the only right guaranteed to the citizen. The moment the citizen ceases to act in protection of his home, his person, or his property, unless acting in aid of the civil power, he steps out from under the protection of the Constitution, and his right to bear arms may be taken away or limited by reasonable restrictions. The reasoning of the cases sustaining statutes prohibiting the carrying of concealed weapons is applicable here also. State v. Wilforth, 74 Mo. 528, 41 Am. Rep. 330; State v. Shelby, 90 Mo. 302, 2 S. W. 468; State v. Feet, 269 Mo. 206, 190 S. W. 573, L. R. A. 1917C, 60.
Although the citizen has the right to bear arms and to exhibit the same in a rude, angry, or threatening manner without fear of successful prosecution when his home or possessions are invaded of his personal safety threatened, he has no such rights as the aggressor himself. The statute must be reasonably construed, and, if a construction in harmony with the Constitution can be given to it, it is our duty to construe it in that manner. The only reasonable and sensible construction to give the statute is that the exhibitions of deadly weapons in a rude, angry, or threatening manner, when the act of aggression or assault is being committed by such citizen, is all that is prohibited.
The portion of section 3275, R. S. 1919, thus attacked is not only wise and salutary, and in the interest of public peace and the protection of human life, but is also in harmony with section 17, art. 2, of the Constitution, when its purpose is understood. The attack upon the statute and information is without merit.
II. Defendant assigns error in the refusal of his requested instructions 10 and 11. It is unnecessary to quote them. They are based on the theory that a man's house is his castle, which no man may invade, and that every man has the right to resist such invasion and to protect himself, his home, his family, and his possessions by force,...
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