State v. Whitman

• Citation: 248 S.W. 937
• Decision Date: 23 February 1923
• Docket Number: No. 24137.,24137.
• Parties: STATE v. WHITMAN.
• Court: United States State Supreme Court of Missouri

248 S.W. 937

STATE v. WHITMAN.

No. 24137.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from Circuit Court, Newton County; Chas. L. Henson, Judge.

Elmer Whitman was convicted of carrying concealed a deadly and dangerous weapon, and he appeals. Affirmed.

Chas. E. Prettyman, of Neosho, for appellant.

Jesse W. Barrett, Atty. Gen., R. W. Otto, Asst. Atty. Gen., and Stratton Shartel, Sp. Asst. Atty. Gen., for the State.

DAVIS, C.

I. Defendant was convicted, on the 6th day of June, 1922, in the circuit court of Newton county, of the charge of carrying concealed about his person a deadly and dangerous weapon, and his punishment assessed at a fine of $200. The information contained two counts, the first carrying concealed a deadly and dangerous weapon, and the second exhibiting it in a rude, threatening, and angry manner. At the close of the whole testimony, the court requiring, the state elected to stand on the first count of the information, and dismissed the second count

(a) The information is sufficient in substance and form, and is in accord with the established precedents. State v. Jackson, 283 Mo. 18, 222 S. W. 746.

II. The jury found defendant guilty as charged in the first count of the information, and assessed his punishment at a fine of $200, and found the defendant not guilty on the second count. The verdict is regular on its face and sufficient in form. State v. Jackson, 283 Mo. 18, 222 S. W. 746.

III. (a) The first instruction required the jury to find that "the weapon was intentionally concealed about his person; that is, entirely and intentionally hidden about his person from the view of others." This instruction is sufficient in substance and form. State v. Carter, 259 Mo. 349, 168 S. W. 679.

(b) The other instructions given by the court are the usual instructions given in criminal cases on the presumption of innocence, reasonable doubt, and credibility of the witnesses, and have been approved. State v. Hudspeth, 159 Mo. 178, loc. cit. 200, 60 S. W. 136.

IV. The defendant contends that the court should have sustained instructions to acquit, in the nature of demurrers to the evidence, offered by the defendant at the close of the state's case, and the whole evidence. These instructions should only be given where the state's evidence, in the first instance, and the whole evidence, in the second instance, fails to make a prima facie case for the jury. The testimony for the state tends to show that defendant carried an automatic pistol about his person while present at a church meeting where people were gathered at a schoolhouse in the country, and that said pistol was concealed under his jumper. Defendant's evidence tends to show that he carried the pistol about his person at that time and place, but that it was not concealed. We may say, in passing, that the greater number of witnesses verified defendant's contention. We may not, however, disturb the verdict, because the evidence for the state and defense are in conflict. The trial court is the proper tribunal to set aside a verdict as against the greater weight of the evidence, and this court may not interfere, unless an abuse of its discretion affirmatively appears. In this case, no such abuse appears. It was for the jury to say, in considering the conflicting testimony, whether, in their opinion, the facts in evidence, under the instructions, showed defendant guilty beyond a reasonable doubt. The requests to instruct to acquit were properly overruled. State v. Jackson, 283 Mo. 18, loc. cit. 24, 222 S. W. 746; State v. Conley, 280 Mo. 21, loc. cit. 23, 25, 217 S. W. 29. Again, where there is evidence of a concealed weapon, forbidden by statute, the intent may be inferred. State v. Conley, 280 Mo. 21, loc. cit. 25, 217 S. W. 29.

V. Defendant, in his first and ninth assignments in the motion for new trial, assigns as error rulings of the court as to the admission and rejections of evidence:

"(1) The court erred in admitting incompetent and irrelevant and irregular evidence on the part of the state.

"(9) The court erred in not sustaining the objections of the defendant to questions and answers of the witnesses."

General assignments of error, if sufficiently definite, bring the admission or rejection of evidence up for review. Wampler v. Railroad, 269 Mo. 464, 190 S. W. 908; State v. Barrington, 198 Mo. 23, loc. cit. 76, 95 S. W. 235; State v. Ellis, 290 Mo. 219, 234 S. W. 845, loc. cit. 849; State v. Parmenter (Mo. Sup.) 242 S. W. 897. We have examined the record, and find no error in admitting or excluding testimony.

VI. Defendant in his motion for a new trial assigns the following as error:

"(4) That the verdict of the jury is against the evidence and the law in the case, and according to the instructions of the court to the jury, and it is received by the court as a verdict of the jury in this case.

"(8) The verdict is contrary to the law and the evidence."

The foregoing assignments are too indefinite to require consideration by this court. State v. Jackson, 283 Mo. 18, loc. cit 24, 222 S. W. 746; State v. Rowe & Sanders, 271 Mo. 88, loc. cit. 94, 196 S. W. 7; State v. Mann (Mo. Sup.) 217 S. W. 67, loc. cit. 69; State v. Selleck (Mo. Sup.) 199 S. W. 129, loc....