State v. Wilforth

• Decision Date: 31 October 1881
• Citation: 74 Mo. 528
• Parties: THE STATE v. WILFORTH, Appellant.
• Court: Missouri Supreme Court

74 Mo. 528

THE STATE

v.WILFORTH, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Cape Girardeau Circuit Court.--HON. D. L. HAWKINS, Judge.

AFFIRMED.

Wm. M. Morgan for appellant.

D. H. McIntyre, Attorney General, for the State.

The law prohibiting the wearing of concealed weapons, is a police regulation for the protection of society and not an infringement of the constitutional right to bear arms. It does not prohibit the right to bear arms, but provides that they shall not be worn in a manner dangerous to the welfare of society. Nunn v. State, 1 Kelly (Ga.) 243; State v. Jumel, 13 La. Ann. 399; Owen v. State, 31 Ala. 387; State v. Buzzard, 4 Ark. 18; State v. Mitchell, 3 Blackf. (Ind.) 229.

NORTON, J.

Defendant was indicted at the May term, 1877, of the circuit court of Cape Girardeau county for going into a church house in said county where people were assembled for literary purposes, viz: for the purposes of a school exhibition, the said defendant having about his person fire-arms, the said defendant not being a person whose duty it is to bear arms in the discharge of duties imposed upon him by law. On the trial defendant was convicted and fined $10, and the cause is here on his appeal. There being neither assignment of errors nor brief on the part of defendant, we are driven to the record for the ascertainment of the errors relied upon by him. These errors, as disclosed by the record, are the action of the court in rejecting evidence, and refusing instructions asked by defendant, and the refusal of the court to arrest the judgment on the ground that the statute on which the indictment is founded is unconstitutional.

The only evidence rejected by the court was that of defendant, who being introduced as a witness, was asked to state whether, at the time he entered the house where a school exhibition was in progress, he knew it was contrary to law to carry arms, and whether or not he believed he had the right to carry arms. This evidence was properly refused. Ignorantia legis excusat neminem.

Defendant also asked the court to instruct the jury to the effect that if they believed defendant carried the pistol for the purpose of trade, or went into the house where the exhibition was going on having reasonable cause to believe that he would be in danger of bodily harm, and procured the pistol to protect himself against such harm, they would acquit. These instructions were properly refused for the reason (if for no other) that there was not a scintilla of evidence upon which to base them.

It is also insisted that the statute on which the indictment was framed is in conflict with the 2nd article of amendments to the constitution of the United States, which declares “that the right of the people to keep and bear arms shall not be infringed.” The statute which gave origin to the indictment, (Acts 1875, § 1, p. 50,) is directed against the practice of carrying concealed weapons or firearms, and the pernicious consequences flowing from such a practice. In Kentucky it has been held that any statute which denies to the citizen the right to carry arms, whether openly or concealed, is an infringement of the right guaranteed by the constitution. Bliss v. Commonwealth, 2 Litt. 90. The same doctrine prevails in Tennessee. On...